delivered the following dissenting opinion.
I regret that .1 cannot concur with the conclusion reached by the majority of the court,- and will briefly state my reasons for dissenting.
*415I regard it as established by the great weight of authority that, when the framers of the constitution used the language, “in all civil cases the right of trial by jury shall remain inviolate,” they meant that the system of trial by jury, which was then in existence, and which had been in existence for years, and which had been tried and found satisfactory, should remain intact. It seems to me that this is so unquestionably settled by the decisions of this court that it may be regarded as stare decisis. In Tribou v. Strowbridge, 7 Or. 156, Mr. Justice Boise, speaking for the court, uses this language:
“This language of the constitution indicates that the right of trial by jury shall continue to all suitors in courts in all cases in which it was secured to them by the laws and practice of the courts at the time of the adoption of the constitution. * * So that, in order to ascertain whether such right exists in this case, we must look into the history of our laws and jurisprudence at and before the adoption of the State Constitution.”
This declaration derives additional weight, not only from the great reputation of the jurist who uttered it, but from the additional fact that he sat as a member of the convention which framed the constitution, and that both his associates, Justices Kelly and Prim, who concurred in the opinion, were members of the same body. Rousseau’s remark, that “he who made the law best knows how it should be interpreted,” applies here with peculiar force. If anybody knew what was in the minds of the framers of the constitution when they incorporated into it this valuable bulwark of our liberties, these three men knew. To the same effect as the case above cited is Deane v. Willamette Bridge Co., 22 Or. 167 (29 Pac. 440: 15 L. R. A. 614); Fleischner v. Investment Co., 25 Or. 119 (35 Pac. 174); Raymond v. Flavel, 27 Or. 219 (40 Pac. 158). These cases are conclusive upon this court, and are supported by the better authorities from *416other jurisdictions. Whallon v. Bancroft, 4 Minn. 109 (Gil. 70) ; Spriesterbach v. Schmidt, 64 Minn. 211 (66 N. W. 721) ; Cockrill v. Cox, 65 Tex. 669; Tabor v. Cook, 15 Mich, 322; B. & M. C. C. & S. M. Co. v. Montana O. P. Co., 26 Mont. 146 (66 Pac. 752), and many other cases.
It is also contended that this is not a “civil case,” within the meaning of the constitution; but in my judgment this contention is unsound. The framers of the constitution were dealing with broad generalities, and not with details. Broadly speaking, cases in the courts are divided into two classes, civil and criminal, and as the term “civil case,” as here used, is with the intent to include all proceedings not criminal, as the latter are elsewhere separately provided for in the constitution. It will be noticed that the word “case” is used — not “suit” or “action”, which are terms of narrower signification: Aldrich v. City of Providence, 15 R. I. 613 (10 Atl. 592). But this court is committed to the doctrine that even the narrower term “civil action” includes proceedings- in equity, as well as actions at law. In re Fenstermacher v. State, 19 Or. 504, (25 Pac. 142), Mr. Justice Lobd, speaking for the court, expressly holds that “the phrase ‘civil actions’ includes actions at law or suits in equity and all other judicial controversies in which rights of property are involved, and is used in contradiction to ‘criminal action.’ ” I quote the foregoing from the syllabus, which was prepared by the justice who wrote the opinion. Thus, to hold that a proceeding in equity is not a civil case, we must overrule the decision of our own court, which has stood unquestioned for nearly a quarter of a century. This opinion is strengthened by decisions of other courts: Dow v. Norris, 4 N. H. 16 (17 Am. Dec. 400) ; Carpenter v. Jones, 121 Cal. 362 (53 Pac. 842) ; United States v. Ten Thousand Cigars, 28 Fed. Cas. 39.
It is admitted that, unless the act of 1853, giving a *417contestant of a will the right to apply by petition to the district court, was void, such petitioner would have had the right to demand a trial by jury in that court; but it is claimed that the constitution, by establishing the county court and investing it with probate jurisdiction, took away from such petitioner the right of trial by jury. Such, in my opinion, is not the case. It is not the forum nor the technical procedure that is to remain permanent, but it is the right. It is probable that Section 936, L. O. L., taken in connection with the repeal of the statute of 1853, gives the county court exclusive jurisdiction in the first instance in all will contests. Indeed, this would seem necessarily to follow; but it does not follow that because the forum was changed the right was destroyed. There is provision by law for juries in the county court, and, if there were not, there remained an appeal to a tribunal where there existed ample provision for such trial. Petitioner was compelled, first, to litigate her case in the county court, and by its ruling she was compelled to litigate without a jury. She was again compelled to litigate it in the circuit court, without a jury, and, as the decree was wholly in her favor, she could not appeal from the previous ruling. In my opinion there are two courses open to this court, by either of which her constitutional rights may be preserved: (1) The proponent, having insisted upon a trial by the court, should be deemed to have waived a right of trial by jury, and the findings of the circuit court should be treated as the verdict of a jury in such cases, and the judgment affirmed; or (2) the case should be reversed and sent back to the circuit court, with directions to award petitioner a jury trial.
This is peculiarly a case for a jury. There are few questions of law involved; the whole matter resolving itself into a question ■ of the sanity of the testator — a question which an intelligent layman is just as competent *418to solve as a judge. Even if the granting of a jury trial was discretionary, I am inclined to the opinion that a refusal to grant it, in this instance, was an abuse of discretion, which should be remedied by a retrial. Personally I do not feel convinced by the evidence that the deceased was insane; but the testimony was conflicting, and much of it on behalf of contestant exceedingly strong, and I believe petitioner should have had the benefit of the judgment of twelve men, instead of five.
In the majority opinion it is intimated that the act of 1853, investing the district courts with power to reopen the probate of a will and grant a jury trial of the issues framed before a jury, is contrary to the organic act, and void. It is said that, as the act created a probate court, its jurisdiction was necessarily original and exclusive, and that, as the organic act stood practically as a constitution, so far as the legislative nowers of the then territory was concerned, any attempt to take away any of the powers of the probate court was nugatory. In support of this argument the cases of Ferris v. Higley, 20 Wall. 375 (22 L. Ed. 383) ; Moore v. Koubly, 1 Idaho 55; Locknane v. Martin, McCahan (Kan.) 60, and other cases are cited. In the organic acts of all these territories the probate court was created as such, without any other jurisdiction. Outside of its legitimate sphere, it was granted no authority or jurisdiction whatever. The cases all arose from an attempt to wrest jurisdiction, expressly granted to other and higher courts having practically general and superior jurisdiction, from such courts and vest it in the probate courts. I have found no case, and believe that none exists, holding that the territorial courts might not be invested with power to review, by an original proceeding or otherwise, the acts of the probate court, and this was all that the act of 1853 attempted to do. Such proceeding could only be commenced after the probate court had acted. It was a proceeding to reopen *419the probate of a will already had ex parte, and without a jury, and for the purpose, among others, to give the contestant any opportunity to have the validity of the will passed upon by a jury. It was a proceeding somewhat in the nature of a bill of review, but brought in a different court than that in which the original proceeding was had, probably because probate courts, as such, had no power granted by the organic act to review their own proceedings. It was not a proceeding to probate a will, but to set aside such probate, or to determine whether the alleged will was such an instrument as should have been admitted to probate. This fact having been determined by a jury, for which no provision had been made in the probate court, the further proceedings in the probate court with respect to the will would naturally proceed, subject to the findings of a jury, as to its validity. The fathers of free government in Oregon were jealous of any encroachment on the right of jury trial, and carefully preserved that right in the matter of contests in regard to the validity of wills by providing for a hearing in a court where juries were permitted.
It will also be noticed that the organic act of Oregon provided that all laws passed by the legislative assembly should be submitted to Congress, and, if disapproved by that body, such act should be null and void. The presumption of law is that this was done, and the failure of Congress to disapprove the act in question is, to my mind, a tacit approval of it. This provision of the organic act does not seem to have been given consideration in the cases cited. In some of the territories no such provision appears. But, even granting that the act of 1853 was technically a violation of the organic act, it was recognized in the territory of Oregon, and had never been judicially declared to be void; and the apparent rights under it were entirely within the spirit of the constitutional provision and within its evident intent, considering *420the state of affairs existing when it was adopted, and when the State was admitted.
It is contended that, the constitution having provided that the legislature should have the right to define, limit, and regulate the jurisdiction of the county court and other courts, and having vested probate jurisdiction exclusively in the county court, the admission of the State by Congress, with such provisions in its constitution, operated as an implied constitutional and congressional repeal of the act of 1853; but such provisions in the constitution should be read in connection with the other provisions of the constitution, providing that the “right of trial by jury in civil cases shall remain inviolate.” Reading this provision, as we should, into the section creating and defining the jurisdiction of the county court, the irresistible conclusion is that only the forum for trial is changed, and that the right to trial by jury is preserved.
It is also suggested, and with much plausibility, that, as trial by jury in these cases has not been generally recognized in this State since the adoption of the constitution, this circumstance furnishes a strong argument against the claim of petitioner in the case at bar. I have never heard, either of its being demanded, dr refused or granted, though all of these things may have occurred. It may be true, and no doubt is, that the provisions of the constitution and laws which in my judgment, give such right in cases of this kind have been generally overlooked; but, “though the law hath slept, it is not dead,” and the right of trial by jury is one so precious, so vital to the preservation of our liberties, that we can well afford to search a little to find it, even to the extent of raking over the dead ashes of the past 50 years. "It is a coal from the altar of liberty, and we should rather blow it into a flame than seek to extinguish it.
The cause should be retried by a jury.
Mr. Justice Bean concurs in the foregoing opinion of. Mr. Justice McBride.