dissented, as follows:
I cannot agree with my brothers that the section of the statute referred to is void.
The statute for the trial of civil actions by the District Court requires twelve jurors. The constitution of the United States requires twelve jurors. Said section of the insolvency act says the trial should be by jury and not less than sis. The section does not, in terms, provide that the trial shall be by six jurors. By construing the section to mean that the trial may be by six jurors unless twelve be -demanded, the section may stand with the constitution.
*369When a statute is capable of two different constructions, one of which is consistent with the constitution and the other not, that consistent with the constitution should be adopted.
Construing the said section as meaning six jurors unless twelve are demanded, it is constitutional. I think that construction should be given it, in order that the will of the legislature as to jury trial and the constitution of the United States shall both stand together, and neither be defeated.
The construction adopted by my brothers defeats the jury trial intended by the legislature, when the other construction does not, and I think that the construction which carries out the constitutional will of the legislature should be adopted.