¶1 dissenting. I concur in that part of the opinion of the court covered by the first, second, third and fourth paragraphs of the syllabus. But, granting that one of the elements of trial by jury as it existed prior to statehood was the power of the trial judge to instruct the jury upon the law, still the conclusion reached by the court does not necessarily follow. Prior to statehood the class of cases to which the one at bar belongs were triable in the probate or justice of the peace courts of the territory before a jury of six, and such courts were not allowed to instruct as to the law. Such trials were upheld upon the theory that, as the laws of the territory provided for an appeal to the district court where.the cause could be tried by a jury of twelve men, a trial before six men in the justice’s court was not unconstitutional. Section 18, art. 7 of the Constitution, however, provides that justices of the peace shall have juriisdictioh, concurrent with the *449 county court, in civil cases where the amount involved does not exceed two hundred dollars, and that, until otherwise provided by law, appeals shall be allowed from judgments of the courts of justices of the peace to the county court in the manner provided by the laws of the territory governing appeals from the courts of justices of the peace to the district court; and section 15 of the same article provides that appeals shall be taken from the judgments of county courts direct to the Supreme Court in the same manner as appeals are taken to the Supreme Court from judgments of the district court. One of the effects of these constitutional provisions is to modify trial by jury in this class, of cases as it existed prior to statehood by taking away the right to have such eases tried on appeal in.a court empowered to instruct upon the law.
¶2 This- seems to me to be the only logical conclusion that can be reached, considering the text of the Constitution alone, or in connection with the laws of the territory extended over and put in force in the state by the Schedule. If this construction was adopted, the procedure' of the territory of Oklahoma, adopted by the Constitutional Convention for the purpose of vitalizing the Constitution, in order that no inconvenience may arise by reason of the change in the government, would not be repugnant to the jury system adopted by the state for the trial of this class of cases and no hitches in the administration of justice will occur. It was the intention of the members of the Constitutional Convention and Congress, evidenced by the provisions of .the Enabling Act and their acceptance by the convention, that there should be no greater lapse in the. administration of government of the state! in all its departments on account of the change in the form •of government than was unavoidable, and said provisions should receive a liberal construction to effectuate that purpose.