The undisputed testimony in this case is, that the defendant is maintaining a milldam in Christian county without providing the chute required by section 7023, Revised Statutes 1889. The dam was lawfully erected in the year 1858 or 1859, and has been maintained since that date. Section 7023 was first enacted in 1881. The defendant contends that he acquired a prescriptive right to maintain his dam in its present condition before the enactment of the law under which he is indicted; that this prescriptive right is valuable as a property right, and he denies the power of the legislature to deprive him of this right, or to attach conditions to its free enjoyment, under the exercise of its powers to regulate the police of the state. This raises a constitutional question, and *566is not within the jurisdiction of this court to determine. Hence we transfer the case to the supreme court for decision.