delivered the following dissenting opinion:
The opinion heretofore filed in. this case leaves undecided the status of probate cases heard and determined in department No. 6 of the Circuit Court as constituted in pursuance of the act of March 4, 1913 (Laws 1913, c. 378), and upon this rehearing it seems appropriate to consider that question. The act referred to, including the title, is as follows:
“To provide an additional circuit judge for the fourth judicial district of the State of Oregon; to abolish the office of county judge in Multnomah County, Oregon, and to provide for the transfer to the Circuit Court of said fourth judicial district of all the judicial 'business and jurisdiction of the said County Court; providing that the present incumbent of said office of county judge shall be and shall serve as the additional circuit judge created by this act until his successor is elected and qualified, as herein provided.’
*620“Be it enacted by the people of the State of Oregon:
“Section 1. That in addition to the five circuit judges now provided by law for the fourth judicial district of the State of Oregon, comprising Multnomah County, there shall be elected on the first Tuesday after the first Monday in November, A. D. 1914, and at the general election every six years thereafter, one circuit judge in said district who shall possess the qualifications prescribed by law for circuit judges, and whose term shall commence on the first Monday of January, A. D. 1915, and who shall hold office for the term of six years and until his successor is elected and qualified.
“Sec. 2. The duties, powers and jurisdiction of said circuit judge shall be such as are prescribed by law and the salary shall be the same as the salary now, or hereafter, received by the other circuit judges of said district and be paid in like manner. The circuit judge herein provided shall sit in a department to be named or designated as department number 6.
“Sec. 3. The office of county judge for the county of Multnomah is hereby abolished and the present' incumbent of said office is hereby created a circuit judge of the said fourth judicial district to sit in department number 6 provided for in the preceding section of this act and to hold such office and to exercise all the powers and jurisdiction of a circuit judge until his successor is elected and qualified as provided in Section 1 of this act.
‘ ‘ Sec. 4. Upon the taking effect of this act all judicial jurisdiction, power and authority of the county judge and of the County Court of said Multnomah County, as distinguished from such power and jurisdiction as is exercised in the transaction of county business shall then, and thereafter, be vested in and exercised by the Circuit Court of said fourth judicial district, and all said matters, causes and proceedings pending in said County Court shall be considered as transferred, continued, heard and disposed of in the said Circuit Court.
*621“Sec. 5. As far as is practicable all matters relating to the administration of estates of decedents, minors, and other legally incompetent persons and probate matters generally, shall be referred to and heard and considered in said department number 6.
“Sec. 6. All acts and parts of acts in conflict herewith are hereby repealed.”
Taking this act in its entirety, and having in view the maxim that if any reasonable construction can be given it consistent with its validity, it may be said to contemplate transferring the county judge, together with his powers in probate matters, to another court, or to a special department of another court, and investing that newly organized court with the power not only to hear and determine matters in probate, but also and in addition to these to perform the duties of a circuit judge. It will be noted that the authority in probate matters thus granted is not vested in all departments of the Circuit Court, but is practically confined to the department there created; Section 5 of the act providing that “as far as practicable” all matters in probate shall be heard in that department. The phrase “as far as practicable” is somewhat indefinite, but may fairly be presumed to refer to such instances and perhaps to others of like character as are specified in Section 939, L. O. L., and in subsequent amendments thereto, which provide that under certain circumstances a circuit judge may act in place- of the county judge. The effect of the act is to create a new court sui generis, possessing some of the powers and functions of a County Court and all of the powers and functions of a Circuit Court. Under the Constitution as it existed before the amendment to Article YU, which went into effect November 8,1910, this could not have been done. Article VII, Section 1, of the original Constitution *622vested the judicial power of the state in the Supreme, Circuit and County Courts, and defined the jurisdiction of each. The amendment referred to vested the judicial power in the Supreme Court, and such other courts as might thereafter be established by law, leaving it wholly in the power of the legislature or the people by the initiative to alter, abolish or create such courts as they might see fit. The legislature has created this new tribunal and named it department No. 6 of the Circuit Court of Multnomah County; but, looking beyond the name, we find that it is a court with other and different powers from those possessed by the other five departments. It is a new court invested with probate jurisdiction not granted to any Circuit Court or to any other department of any Circuit Court. While the question is not without difficulty, and the propriety of such legislation open to criticism, we cannot say that we are satisfied beyond a reasonable doubt of its unconstitutionality, and such is the test to be applied to a law in determining its constitutionality: Cline v. Greenwood, 10 Or. 230; State v. Cochran, 55 Or. 157, 180 (104 Pac. 419,105 Pac. 884), and cases there cited. This rule of construction should be especially observed in cases like the present, where grave and even disastrous consequences might ensue from lightly deciding a statute unconstitutional. To state the matter concretely, the act does not affect the practice in the County Court because the County Court has ceased to exist.' It does not change the practice in the Circuit Court because the court created by this act, while denominated a Circuit Court in the act, is in reality a new court'exercising the powers of the Circuit Court and other powers not theretofore belonging to the Circuit Court. As before remarked, it is a new court possessing a jurisdiction theretofore vested in two *623courts. The main difficulty lies not in the fact that the act has changed the practice of the Circuit Court or of the County Court, hut in the fact that it has created practically a new court and failed to provide forms of procedure, leaving these to future legislation. In such a dilemma a remedy is provided in Section 983, L. O. L., which is as follows:
“When jurisdiction is, by the organic law of this state, or by this Code or any other statute, conferred on a court or judicial officer, all the means, to carry it into effect are also given; and in the exercise of the jurisdiction, if the course of proceeding be not specifically pointed out by this Code, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code. ’ ’
This section has been invoked in this state as shown by State v. Savage, 36 Or. 191 (60 Pac. 610, 61 Pac. 1128). Therefore it was natural and proper for the new court in probate proceedings to adopt those forms sanctioned by long usage in the County Court so far as they seemed applicable under changed conditions; but the provisions for a summary trial without a jury were not so applicable, for the reason that in every matter involving a simple money demand the parties somewhere along the line are entitled to a jury trial. This constitutional right was secured under the old system by allowing an appeal to the Circuit Court from the summary trial in the County Court: Section 1241, L. O. L. It is obvious that this practice would be wholly inapplicable in the tribunal created by the act of 1913, supra, as it would involve an appeal from the decision of the court sitting in probate to the same court sitting as a Circuit Court, or as humorously suggested on the hearing, “An appeal from Philip drunk to Philip sober.”
*624The practice theretofore obtaining in the Circuit Court was the only method by which the contending parties could secure the constitutional right to a jury trial, and, as this was not waived in the manner provided by the Code, the case should be remanded to the Circuit Court with directions to award a jury and retry the case by that method, unless both parties expressly waive a jury in the manner required by Section 157, L. O. L.
For the reasons above given, I dissent from so much of the opinion as holds that part of the act transferring probate business to the Circuit Court unconstitutional.
Mr. Justice Moore and Mr. Justice McNary concur in this dissent.