OPALA, Justice:
This matter, in which our original jurisdiction is sought to be invoked, consists of a post-divorce custody contest commenced by non-custodial parent [father] after petitions had been filed in the same district court to adjudicate two of his children’s status as deprived. Both causes, “consolidated” pursuant to authority of 10 O.S.Supp.1977, § 1102B,1 were set for disposition of all issues in a non-jury trial.
Petitioner [mother] contends she has both a federal and state constitutional right to trial by jury. She asserts also that denial of this trial mode would violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and, implicitly, her rights under Art. 5, § 59, Okl.Con.
I
The Sixth Amendment’s right to trial by jury applies to state criminal actions [Duncan v. Louisiana, 391 U.S. 145, 194, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)] as well as criminal contempt proceedings [Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968)]. While it is the loss of liberty, not the label given to a case, which determines whether a jury is to be accorded, the Duncan and Bloom pronouncements were not extended to state non-criminal [delinquency] proceedings against underage persons accused of violating what would constitute a criminal offense if committed by an adult. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971). Although McKeiver does not answer the specific issue before us because it deals with “delinquency” rather than a “deprived-status” case, its rationale, we are satisfied, applies with even greater force to the latter class of proceedings involving underage persons. This is so because the risk or likelihood of losing liberty or confronting punitive sanction is far greater and more imminent when a juvenile is charged with misconduct prohibited by the penal code than when the litigable issue is the child’s welfare in current custodial environment.2
[1331]*1331McKeiver effectively negates petitioner’s claim to a Sixth and Fourteenth Amendment’s right to trial by jury at the adjudicatory stage of deprived-status proceeding. Her claim under the Seventh Amendment would be even less persuasive. The states remain free from the constraints it imposes on the judiciary of the Federal Republic.3
II
Petitioner’s state constitutional claim is grounded on the proviso added by the 1969 Amendment to Art. 2, § 19, Okl. Con. The thrust of her argument is that since there is now an express mention of “juvenile proceedings” in the 1969 proviso, juvenile litigation stands included as a class within the ambit of cases to which the state constitutional right of jury trial must be applied. This contention was rejected by us in a different procedural setting in J.V. v. State, Dept. of Institutions, etc., Okl., 572 P.2d 1283, 1284-1285 (1978). On re-analysis we reiterate today our commitment to J.V. as the correct exposition of our fundamental law.
The pivotal phrase in § 19, supra, both in its original and post-1969 versions, remains the same.4 It is that “[T]he right of trial by jury shall be and remain inviolate . . ” This phrase has a time-honored sweep of meaning coextensive with “the course of common law” as it stood settled when the Federal Constitution was adopted.5
[1332]*1332The function of a proviso is to restrict or make clear that which has gone before.6 The 1969 proviso did not extend the right to trial by jury beyond its existing common-law parameter by adding to the pivotal phrase any other class of disputes. None of the categories expressly mentioned in the proviso — juvenile proceedings or city ordinance or regulation violations — came to be thereby included in the class of cases triable to a jury eo nomine. Rather, the proviso operates to regulate the size of the jury, where affordable either at common law or by statute, for use within the framework of all-inclusive litigation cognizable by the post-1969 single-level trial bench and to define those cases where a jury of less than the requisite common-law number of twelve persons was to be permitted.7
In short, the proviso secures to the people, and thus shields from legislative change, the therein prescribed size of jury in the defined class of cases.
Juvenile proceedings did not exist at common law. There could be hence no constitutional right to trial by jury available in them. Both from the inception and since the 1969 amendment of § 19, statutory law has been Oklahoma’s sole authority for affording a jury in proceedings to establish guilt of an underage person accused of delinquency or where such person’s status, vis-a-vis his/her custodial milieu, may be the issue in litigation.8
Ill
Lastly, petitioner contends respondent’s application of consolidation authority under § 1102B, by dispensing with jury trial, operates to deny her equal protection of the laws as guaranteed by the Fourteenth Amendment as well as, implicitly, rights under Art. 5, § 59, Okl.Con.
Section 1102B authorizes consolidation of matrimonial-action custody controversies with deprived-status proceedings. This procedural device was no doubt thought necessary to prevent conflicting decisions in separate suits involving custody of the same child and to make more efficient use of the flexibility afforded by our single-level trial bench. The statute is silent about, and does not appear to prescribe, the steps that are to follow the authorized consolidation of causes.
There is neither constitutional nor statutory right to trial by jury in custody controversies generated by, or ancillary to, matrimonial actions while there is a clear statutory mandate for such mode of trial at the adjudicatory stage of the deprived-status proceedings.9 It is urged that trial court’s act of dispensing with jury via § 1102B consolidation impermissibly sets divorced [or judicially separated] parents apart from others in the same class and denies to the former a right that stands available to either a single or married parent never before involved in matrimonial litigation.
The Equal Protection Clause, although not an absolute guarantee of equality of operation or application of state legislation, is intended to safeguard the quality of governmental treatment against arbitrary discrimination. Legislative classification which sets apart a class without any rational basis therefor offends that clause.10
[1333]*1333Our own pronouncements under Art. 5, § 59, Okl.Con., are in substantial harmony with this view. We have held that where a statute seeks to operate upon a class, the classification must not be capricious or arbitrary. If it rests on some distinctive characteristic upon which a different treatment may be justifiably founded, it furnishes a rational, and hence constitutionally permissible, basis for discrimination.11
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OPALA, Justice:
This matter, in which our original jurisdiction is sought to be invoked, consists of a post-divorce custody contest commenced by non-custodial parent [father] after petitions had been filed in the same district court to adjudicate two of his children’s status as deprived. Both causes, “consolidated” pursuant to authority of 10 O.S.Supp.1977, § 1102B,1 were set for disposition of all issues in a non-jury trial.
Petitioner [mother] contends she has both a federal and state constitutional right to trial by jury. She asserts also that denial of this trial mode would violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and, implicitly, her rights under Art. 5, § 59, Okl.Con.
I
The Sixth Amendment’s right to trial by jury applies to state criminal actions [Duncan v. Louisiana, 391 U.S. 145, 194, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)] as well as criminal contempt proceedings [Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968)]. While it is the loss of liberty, not the label given to a case, which determines whether a jury is to be accorded, the Duncan and Bloom pronouncements were not extended to state non-criminal [delinquency] proceedings against underage persons accused of violating what would constitute a criminal offense if committed by an adult. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971). Although McKeiver does not answer the specific issue before us because it deals with “delinquency” rather than a “deprived-status” case, its rationale, we are satisfied, applies with even greater force to the latter class of proceedings involving underage persons. This is so because the risk or likelihood of losing liberty or confronting punitive sanction is far greater and more imminent when a juvenile is charged with misconduct prohibited by the penal code than when the litigable issue is the child’s welfare in current custodial environment.2
[1331]*1331McKeiver effectively negates petitioner’s claim to a Sixth and Fourteenth Amendment’s right to trial by jury at the adjudicatory stage of deprived-status proceeding. Her claim under the Seventh Amendment would be even less persuasive. The states remain free from the constraints it imposes on the judiciary of the Federal Republic.3
II
Petitioner’s state constitutional claim is grounded on the proviso added by the 1969 Amendment to Art. 2, § 19, Okl. Con. The thrust of her argument is that since there is now an express mention of “juvenile proceedings” in the 1969 proviso, juvenile litigation stands included as a class within the ambit of cases to which the state constitutional right of jury trial must be applied. This contention was rejected by us in a different procedural setting in J.V. v. State, Dept. of Institutions, etc., Okl., 572 P.2d 1283, 1284-1285 (1978). On re-analysis we reiterate today our commitment to J.V. as the correct exposition of our fundamental law.
The pivotal phrase in § 19, supra, both in its original and post-1969 versions, remains the same.4 It is that “[T]he right of trial by jury shall be and remain inviolate . . ” This phrase has a time-honored sweep of meaning coextensive with “the course of common law” as it stood settled when the Federal Constitution was adopted.5
[1332]*1332The function of a proviso is to restrict or make clear that which has gone before.6 The 1969 proviso did not extend the right to trial by jury beyond its existing common-law parameter by adding to the pivotal phrase any other class of disputes. None of the categories expressly mentioned in the proviso — juvenile proceedings or city ordinance or regulation violations — came to be thereby included in the class of cases triable to a jury eo nomine. Rather, the proviso operates to regulate the size of the jury, where affordable either at common law or by statute, for use within the framework of all-inclusive litigation cognizable by the post-1969 single-level trial bench and to define those cases where a jury of less than the requisite common-law number of twelve persons was to be permitted.7
In short, the proviso secures to the people, and thus shields from legislative change, the therein prescribed size of jury in the defined class of cases.
Juvenile proceedings did not exist at common law. There could be hence no constitutional right to trial by jury available in them. Both from the inception and since the 1969 amendment of § 19, statutory law has been Oklahoma’s sole authority for affording a jury in proceedings to establish guilt of an underage person accused of delinquency or where such person’s status, vis-a-vis his/her custodial milieu, may be the issue in litigation.8
Ill
Lastly, petitioner contends respondent’s application of consolidation authority under § 1102B, by dispensing with jury trial, operates to deny her equal protection of the laws as guaranteed by the Fourteenth Amendment as well as, implicitly, rights under Art. 5, § 59, Okl.Con.
Section 1102B authorizes consolidation of matrimonial-action custody controversies with deprived-status proceedings. This procedural device was no doubt thought necessary to prevent conflicting decisions in separate suits involving custody of the same child and to make more efficient use of the flexibility afforded by our single-level trial bench. The statute is silent about, and does not appear to prescribe, the steps that are to follow the authorized consolidation of causes.
There is neither constitutional nor statutory right to trial by jury in custody controversies generated by, or ancillary to, matrimonial actions while there is a clear statutory mandate for such mode of trial at the adjudicatory stage of the deprived-status proceedings.9 It is urged that trial court’s act of dispensing with jury via § 1102B consolidation impermissibly sets divorced [or judicially separated] parents apart from others in the same class and denies to the former a right that stands available to either a single or married parent never before involved in matrimonial litigation.
The Equal Protection Clause, although not an absolute guarantee of equality of operation or application of state legislation, is intended to safeguard the quality of governmental treatment against arbitrary discrimination. Legislative classification which sets apart a class without any rational basis therefor offends that clause.10
[1333]*1333Our own pronouncements under Art. 5, § 59, Okl.Con., are in substantial harmony with this view. We have held that where a statute seeks to operate upon a class, the classification must not be capricious or arbitrary. If it rests on some distinctive characteristic upon which a different treatment may be justifiably founded, it furnishes a rational, and hence constitutionally permissible, basis for discrimination.11
A parent’s concern for the care and control of his/her child is universal. It cannot be rationally dichotomized by setting single parents [or those never before involved in matrimonial litigation] apart from others. Failure to accord all litigating parents equal opportunity to enjoy statutorily prescribed mode of trial by jury on the issue of a child’s deprived status creates a classification not founded upon any real and substantial distinctions.
When a statute is susceptible of more than one construction, it must be given that which makes it constitutional rather than one which renders it invalid.12 We therefore hold that upon § 1102B consolidation the court may not sua sponte dispense with trial by jury. Rather, when the section’s authority is invoked, consolidation should take place at the post-adjudicatory stage of the deprived-status litigation. At that stage, there is no right to jury trial and the principal issue is the future well-being of the child. When this procedure is followed on consolidation everyone within the affected class will receive the same treatment under 10 O.S.Supp.1977, § 1110 [jury trial] and shall stand on equal footing when, in a later non-jury hearing, the court reaches for adjudication the custodial-placement issue common to both the matrimonial-action custody contest as well as to the “dispositional” hearing.
Both under the Equal Protection Clause of the Fourteenth Amendment to the U. S. Constitution, as well as under the provisions of Art. 5, § 59, Okl.Con., dicho-tomizing of parents which results from affording them different modes of trial at the adjudicatory stage of the deprived-status proceeding is impermissible. All parents must be given their statutory right to jury trial.
Let the writ issue commanding respondent judge to grant petitioner a trial by jury at the adjudicatory stage of proceedings on the petition to declare her two children deprived.
LAVENDER, C. J., IRWIN, V. C. J., and HODGES, BARNES and HARGRAVE, JJ., concur.
WILLIAMS, SIMMS and DOOLIN, JJ., concur in part; dissent in part.