The Coulter Case, however, was a criminal case, while this is a civil case. Now, while it is not necessary in this case to say more than was said in the Coulter Case, yet, for reasons not necessary now to mention, we have chosen to do so. Many other cases have been sent by this court to the commission for oral argument, in all of which cases, except a few re ments, and decided by this court, motions | cisely the same course, and in this respect for rehearings have been made; and on the the two cases are exactly parallel. hearing of many of such motions suggestions have been made that the hearing had in each particular case before the commission was a nullity,, for the reason that the legislature has no power to create a coin mission, but we have never yet considered such a suggestion or question as a material one in the case. Of course, if the commission in legal contemplation is a nullity, then it is a great irregu-maining cases, final judgments have been larity to send a case to such commission for rendered by this court before any oral arguoral argument; but up to this time the irreg- ment has been heard by the court, and in ularities thus committed, if they are irregu- many of such cases motions for rehearings larities, have been without prejudice. In have afterwards been presented. The rule every case which has been or may be decided on the hearing of such motions is to decide by this court the parties have a right, under the cases finally on such motions. In some our rules, to present it again upon its entire of such cases we reverse our former judgmerits, upon a motion for a rehearing, both ments; in others, we modify them; and in upon briefs and upon oral arguments. In still others, we affirm them; and then, withsending cases to the commission for oral ar-out any further argument or submission, we gument, it is not because of any dislike on direct finally, where a direction is necessary, the part of any member of this court to hear what the lower court shall do. In the most oral arguments. Oral arguments by able of such cases we do not file any additional counsel, who have thoroughly considered opinion. In others of such cases, however, their cases, are great helps to the supreme we do file an additional opinion. Among court, and enable the court to understand the cases of this kind in which additional the cases much more readily than it could possibly do from briefs alone. As to what this court shall do in the future with respect to the commission the members of the court have not yet agreed. Up to the time of the decision by the supreme court of Indiana in the case of State v. Noble, 21 N. E. Rep. 244, this court had but little doubt as to the validity of the law creating the commission. But suppose that such law is void, and that the commission is void, and that the hearing had before the commission is void, still the parties to this case have had a full hearing before the court itself; and it has always been believed that when parties have had a full hearing before the court they could not ask for anything more in that respect. It is then immaterial to them whether some other body is valid or invalid, or whether it has any power to act or not. In the case of State v. Coulter, 40 Kan. 673, 20 Pac. Rep. 525, 526, this court used the following language: "The objection that the opinion was filed by a commissioner is not well taken. The opinion was prepared by a commissioner, under the direction of the court, but was filed by the court, and not by any commissioner. Under these circumstances, the motion for a rehearing will be denied." The original opinion in the Coulter Case was prepared by Commissioner CLOGSTON, and will be found reported in 40 Kan. 88, 19 Pac. Rep. 368. The opinion on the rehearing was prepared by the chief justice, and was concurred in by the other justices. It will be found reported in 40 Kan. and 20 Pac. Rep., as above stated. It is really not necessary that anything further should be said in this case than was said on the rehearing in the Coulter Case; for both cases, as to oral arguments and other things, have taken in this court and before the commission pre opinions have been filed are the following: There are now just four acts of the legislature having relation to a commission for the supreme court, to-wit: Laws 1887, cc. 47, 148; Laws 1889, cc. 49, 246. No two of the judges have yet agreed with reference to all the questions involved in or concerning the validity or invalidity of these acts. Hence at the present time we could not well decide any such questions. But, even if we were agreed, would it be proper to decide these questions in this case? Judge Cooley, in his work on Constitutional Limitations, uses the following language: "It must be evident to any one that the power to declare a legislative enactment void is one which the judge, conscious of the fallibility of the human judgment, will shrink from exercising in any case where he can conscientiously, and with due regard to duty and official oath, decline the responsibility." Cooley, Const. Lim. *159. "Neither will a court, as a general rule, pass upon a constitutional question, and decide a | argument whatever before this court, or any statute to be invalid, unless a decision upon member thereof. After judgment had been that very point becomes necessary to the deter- rendered, a motion for the rehearing of the mination of the cause. 'While courts cannot case was presented by the plaintiff in error shun the discussion of constitutional ques- to this court, and argued orally. In the motions when fairly presented, they will not go tion for a rehearing objection is taken to the out of their way to find such topics. They judgment of this court, upon the ground, will not seek to draw in such weighty matters among others, that the "plaintiff in error has collaterally nor on trivial occasions. It is not had a hearing before the supreme court." both more proper and more respectful to a In the brief filed by the plaintiff in error co-ordinate department to discuss constitu- with the motion for the rehearing it is said, tional questions only when that is the very among other things, "that there can be no lis mota. Thus presented and determined, question, under the law, but what, upon a the decision carries a weight with it to which proceeding in error from any of the district no extrajudicial disquisition is entitled.' In courts of the state to the supreme court, the any case, therefore, where a constitutional plaintiff in error is entitled as a matter of question is raised, though it may be legiti- right to a hearing before the court, which mately presented by the record, yet if the rec-right cannot be satisfied by a hearing before ord also presents some other and clear ground commissioners." When the motion for a reupon which the court may rest its judgment, hearing was filed, one of the parties, although and thereby render the constitutional ques- willing and anxious, had never had any option immaterial to the case, that course will portunity to argue the case orally to this be adopted, and the question of constitutional court, or any member thereof, and yet, notpower will be left for consideration until a withstanding this, judgment had been procase arises which cannot be disposed of with-nounced against such party. I consider that out considering it, and when consequently a the precise question involved has never been decision upon such question will be unavoid- | decided before by this court, and, as it is one able." Cooley, Const. Lim. *163. of supreme importance, I deem it necessary to present my views thereon. The naked question is, as I understand it, can a suitor be denied the inestimable right of oral argument in this court before judgment? Can this court dispose of any case upon its trial docket, and enter judgment therein, when the parties are realy and willing to be beard orally, without giving the parties any oppor It makes no difference in this case whether the acts relating to the commission or the commissioners are valid or invalid, for, in whatever way any question concerning such acts might be decided, the decision of this case upon its merits must be the same as it would be if a different decision upon any question growing out of the aforesaid acts were made. The validity or invalidity of the afore-tunity for oral argument? said acts, or of any portion of any one of If this were an original proceeding in this them, has no relation whatever to the merits court in quo warranto, mandamus, or haof this case. What we shall do in the future beas corpus, I think the decisions already with reference to the commission we have rendered are conclusive that oral argument not yet agreed upon. The motion for the cannot be denied to either party before judgrehearing will be overruled, and the judgment. In such cases this court is a trier of ment already rendered by this court will be permitted to stand. JOHNSTON, J., concurring. HORTON, C. J., (dissenting.) This case was assigned for hearing in this court upon the trial docket for the December sitting of 1888, but was continued to the January terin for 1889, and assigned for argument on January 2d. When the case was called for hearing the attorneys of the parties were present, and one of the attorneys for the plaintiff in error announced that the case was to be argued orally. The case was one of those referred to the commission in accordance with the practice followed since March, 1887. The case was then argued orally before the commission, not, however, in the presence of the supreme court, or any member of the court. Subsequently the commission made its report of the case to this court. Afterwards its written opinion was approved, and judgment entered accordingly by this court, without notice to any of the parties to the case, and without any oral facts as well as of law. In Douglass v. Hill, 29 Kan. 527, it is said by Mr. Justice BREWER, speaking for the court, that "a party to a lawsuit has a right to be heard, not merely in the testimony of his witnesses, but also in the arguments of his counsel. It matters not how weak and inconclusive his testimony may be, if it is enough to present a disputed question of fact upon which he is entitled to a verdict of the jury, he has a right to present in the arguments of his counsel his views of the case. This is no matter of discretion on the part of the court, but an absolute right of the party. Courts doubtless may prevent their time from being unnecessarily occupied by prolix arguments, and so may limit the time which counsel shall occupy; and if the restriction is a reasonable one, in view of the questions involved and the testimony presented, there will be no error. State v. Riddle, 20 an. 716. But limiting the time of an argument, and refusing to permit any argument at all, are entirely dif ferent matters. The one is the exercise of a discretion, the other is a denial of a right." In State v. Collins, 70 N. C. 241, it is said: court alone, and this court is solely responsible for the decision. The commission has no responsibility, other than to faithfully and diligently "aid and assist the court in the performance of its [the court's] duties, under such rules and regulations as the court may adopt." The court, however, must read all briefs submitted, and all portions of the testimony or record material in the case. If I am to be held responsible for a decision, I desire to hear the oral argument, if any is made, before my decision is given. Although this is a proceeding in error, and not an original case, I do not think this court, considering the practice in existence at the formation and adoption of the constitution, I think the court has the inherent power has the power to deny to any party the right to call to its assistance, "to aid and assist it to orally present his case by attorney to this in the performance of its duties," amanuencourt, when the cause is regularly called for ses, clerks, and stenographers, or other perhearing. The court, however, within reasons of like capacity: and also, in some cases, sonable rules may limit the time of oral argu- to appoint masters or commissioners, "to aid ment, and also require written briefs and and assist in the performance of its duties;" abstracts. Oral argument, in reasonable but in no case can the court abdicate its duty, bounds, is helpful and beneficial to the court, and throw upon its amanuenses, clerks, and therefore its denial is both injurious to stenographers, masters, or commissioners the suitors and the court. In my own case, as a judicial duties demanded and required of it general thing, I am much better qualified to by the constitution and laws. In no case, I decide a case which is submitted to me upon think, can any judgment be rendered by this oral argument than upon briefs or abstracts court, where the parties have not waived only. A court, pushed and pressed with oral argument, until the parties have had an business as our court is, ought to have all opportunity to orally argue their cases, withthe help, assistance, and benefit that oral ar- in reasonable rules and regulations. I am of guments can give. At least, I wish it, if the opinion that only those cases should be the attorneys are willing to furnish it. If referred to the commission which the parties the court had the power to deny to suitors submit on briefs, and thereby waive oral arthe privilege of having their cases argued gument; and, where other cases are assigned orally when called for hearing, I would not to the commission, then the report of the favor its exercise, as it does not give satis- commission should be filed in the court, and faction to the profession, or to the parties the parties given reasonable time to examine having cases to be decided. When I was in the report, and to orally argue the case and the active practice, I preferred to argue my report in the court, before the report is acted jury cases before the jury returned their ver-upon by the court or judgment is rendered. dict. I also preferred to argue my law cases to the court before the judgment was rendered against my client. I judge others by myself. If some cases are assigned to be orally argued before the commission, and The intimation in the opinion that the others are set down for argument before the plaintiff in error has had an opportunity to court, then partiality is shown, unless the be heard orally before the court upon the suitors have the privilege of deciding wheth-motion for a rehearing, and therefore has no er they will orally argue their cases to the reasonable ground of complaint, is to me uncourt or to the commission. If the practice satisfactory. Courts, after all, are only huof public assignments is to continue, suitors man, and after the members of a court have should have the option where to go. That consulted together over a case, have reached this court, prior to the practice followed conclusions as to the facts and law involved, since March, 1887, always understood that have formulated their conclusions in a writparties had the right to oral argument of ten opinion, and thereon have rendered judgtheir cases before judgment, is shown by the ment, oral argument upon a motion for a adoption and publication of the following new trial or a rehearing is not as beneficial rule: "One hour only, except with the con- as if presented before the decision is given sent of the court, shall be consumed in the and the judgment rendered. After the judg oral argument of a cause by counsel for ment is rendered, the party defeated has the either party." This rule is still in force, not laboring oar upon the motion for a new trial modified or repealed, and this rule applies or a rehearing. This, in my opinion, places solely to the supreme court, not to the com- the party who has no opportunity to orally mission, or any other body. A similar rule argue his case before judgment in an unforhas always been in force ever since the ex-tunate position. But if a party is entitled to istence of the supreme court of the state. A oral argument before judgment, can it be like rule for oral argument was adopted by fairly said that the law is complied with, if the supreme court of the territory before the he is only permitted to argue his case upon a adoption of the state constitution. The judg-motion for a new trial or a rehearing? If ment in each case must be rendered by this he is entitled to an oral argument before I do not consider a party has his day in court who is denied oral argument before judgment is rendered against him, unless he waives oral argument. judgment, is the law complied with if he is only permitted to argue the case after judg ment? compel this court, nolens volens, to refer Sec Again, under the rules of the court, each party is entitled to one hour for oral argument to present his case. Upon a motion for a rehearing, one-half an hour only is given to each party for oral argument, except in special cases. It is stated in the opinion that "this case has taken the usual course that other cases have taken since the organization of the commission." This does not seem to me to give any valid support to the conclusion of the majority of the court, if the practice adopted or followed of refusing oral arguments before judgment is indefensible, as I claim. If, to relieve the overburdened docket, this court has adopted or followed any practice contrary to the letter or spirit of the constitution, unjust to suitors, unfair to the court, or likely to disfigure the Reports with overruled and modified cases, the sooner the vicious practice is corrected the better for the court, suitors, and the public. When convinced that any error or mistake has been committed by me, I have not that pride of opinion which will permit me to see the law As before stated, this court has the inperverted and injustice done for fear of being herent power to appoint amanuenses, clerks, charged with inconsistency. The case of stenographers, masters, or commissioners to State v. Coulter, 40 Kan. 88, 20 Pac. Rep. aid it in the preparation of its opinions, and 525, is referred to, to sustain the foregoing this court may refer, if it so chooses, any of opinion. In that case Coulter was convicted the numerous cases now pending, or that upon one count for the unlawful sale of in- may hereafter be pending, in the court, to toxicating liquors. Upon the motion for the such commissioners, and avail itself of their rehearing the facts presented in this case aid and assistance in preparing opinions. were not urged in that. The only reference This is no imposition on the court; but it to the commission in the motion for the re- may also refuse to re. 'er any case, if it chooses. hearing was as follows: "Because the said Within the rules and limitations stated, I opinion filed in this case was filed by a com- think the commission useful, valuable, and missioner, and not by the court." In the important. I highly esteem the members brief filed by the appellant, with the motion thereof for their learning, ability, and energy, for the rehearing, the reference to the com- and hence a reference of cases to them, withmission was no broader than in the motion. in the foregoing limitations, will be advanI prepared the opinion upon the rehearing, tageous to the court, the parties, and the but did not examine or consider the questions public. In State v. Noble, supra, all that now involved. No authorities were cited or was required to be decided was "that, where presented in the Coulter Case upon the ques- assistants are necessary to enable judges to tion of the right of oral argument; nor were discharge their duties as judges, the court any authorities cited or presented attacking must choose those assistants. If the govthe constitutionality of the acts creating the ernor appoints assistants, and the court commission; nor were any authorities cited adopts them by referring cases to them, the or presented challenging the practice of this court substantially chooses the assi. nts. court in referring cases to the commission. Again, in the Indiana statute, one of the secIn California, where a somewhat similar stat- tions (the fifth) assumes to constitute the ute authorizing a commission is in force, the persons chosen for the commission an indecommission does not, as I am reliably in- pendent body, and invests them with powers formed, hear oral arguments. In Indiana greater than those conferred upon the Indiana the act authorizing the commission has been supreme court. Said chapters 148 and 246 declared unconstitutional. State v. Noble, of this state have no such provision. As the 21 N. E. Rep. 244. In Ohio, where commis- plaintiff in error, when it filed its motion sions have been in existence, the constitution for a rehearing, had never had any opporof the state expressly provides for their crea-tunity to orally argue this case in court betion, and the commission in that state is a fore judgment was pronounced, and as it constitutional body. If it were intended by never waived its right to oral argument, I chapter 148, Sess. Laws 1887, and chapter have not referred to the merits of the original 246, Sess. Laws 1889, to deprive this court | case, or to the law questions involved thereof the power to hear oral arguments, or if it in. In my opinion, the order and judgment were intended to confer judicial powers upon of this court should be set aside, and the case the commission, or if it were intended to set down for argument in due and regular form, as other cases should be heard and ar- | in the order in which the same have been pregued when parties desire oral argument before judgment. (13 Colo. 155) PARKER et al. v. PEOPLE. (Supreme Court of Colorado. June 26, 1889.) CONSTITUTIONAL LAW-CRIMINAL LAW-GRAND JURIES-PETIT JURIES-JUDGMENT-PRACTICE. 1. Const. U. S. amend. 14, providing that no person shall be deprived of life or liberty without "due process of law, " does not prohibit a state from authorizing a grand jury consisting of less than the common-law number of jurors. 2. It is sufficient if the record of the term once shows the proper selection and impaneling of the grand jury, and it need not be repeated in the record of each indictment found. 3. Where the whole record is not brought up on appeal it will be presumed, in the absence of any thing to the contrary, that the preliminary proceedings relative to the impaneling of the grand jury were regular. 4. Const. Colo. art. 6, § 28, which provides for uniformity in organization, proceedings, and practice among all courts of the same grade, is not violated by Laws 18S3, p. 160, § 22, which provides that only half as many petit jurors need be drawn in criminal courts as is required by law in the district courts of the same counties, the two courts not being of the same grade. 5. A cumulative sentence of imprisonment for a period not exceeding, in the aggregate, the maximum term fixed for a single offense, imposed by a judgment rendered on a number of indictments for felony, which have been consolidated for trial only, is valid. 6. Defendants cannot complain of such a consol idation made on their own motion. 7. One indictment may contain a count for burglary and one for larceny, or counts for burglary and receiving stolen goods. 8. The record need not affirmatively show that the defendant has been served with a copy of the indictment and a list of the jurors and witnesses, as provided by statute, since, if no objection is made in the trial court, it will be presumed that the law was followed. Error to criminal court, Arapahoe county. Plaintiffs in error were indicted for several criminal offenses at the January, A. D. 1886, term of the district court of Arapahoe county, and the cases thereafter transferred to the criminal court of said county for further proceedings according to law. In the criminal court the cases were consolidated for trial at the request of the defendants, and a trial thereafter had of all the cases to the same jury, which resulted in a verdict of guilty in three of the cases, and a verdict of not guilty in the remainder. A motion for a new trial having been overruled, the court imposed a distinct sentence upon each conviction, the aggregate term of such sentences being seven years' imprisonment in the penitentiary for each defendant; the sentence in each subsequent case after the first to commence immediately upon the expiration of the term of sentence upon the next preceding conviction. To reverse these judgments this writ of error has been sued out. H. B. O'Reilly, for plaintiffs in error. Sam Jones, Atty. Gen., and H. Riddell, for the People. HAYT, J. We will consider the questions raised by the numerous assignments of error sented by counsel. By the first assignment of error the regularity of the selection and impaneling of the grand jury finding the indictments is questioned. The only record which we have before us of the proceedings in the district court is the one made out and filed in the criminal court at the time of the change of venue from the former to the latter. This record, after showing that the district court was regularly in session at the time for the transaction of general business, the proper officers being present, contains the following entries in case No. 3,173, and substantially the same entries in each of the other cases, to-wit: "The People, etc., versus John R. Parker et al.-3,173. Burglary, etc.-Be it remembered that heretofore, and on, to-wit, the 5th day of February, the same being one of the regular juridical days of the January term of said court, the following proceedings were had and entered of record in said cause, to-wit: At this day come the members of the grand jury, heretofore impaneled and sworn, and present to the court here the following true bills of indictment, to-wit: The People, etc., versus John R. Parker, George Cushman, and Charles Wilbur. — 3,173. Burglary and Larceny.' Indorsed: A true bill.' FREDERICK J. BURTON, Foreman of Grand Jury." April 13, 1886, there is this entry of record. "The People, etc., versus John R. Parker, George Cushman, and Charles Wilbur.-3,173. Burglary and Larceny.— At this day comes Ledru R. Rhodes, district attorney, who prosecutes the pleas of the people in this behalf, and the said defendants are brought into court; and, it appearing to the court that the said defendants are in custody, it is ordered by the court that this cause be removed and certified to the criminal court of Arapahoe county, in accordance with the statute in such case made and provided." This record, while quite inartificially drawn, is in substantial compliance with the act authorizing the transfer of cases from the district court to the criminal court of the same county. By this act the clerk was not required to transmit in each case the proceedings in reference to either the selection or impaneling of the grand jury, or any proceedings in the former court anterior to the finding of the indictment. We have, however, in this record sufficient to show that the grand jury returning this indictment had been previously impaneled and sworn under the supervision of the court, and certainly the presumption is warranted that the grand jury was organized according to law, although the preliminary record is not before us. Wilson v. People, 3 Colo. 328. The plaintiffs in error were defended by able counsel in the court below, who would have been swift to take advantage of any irregularity in the selection or impaneling of the grand jury finding the indictment, if any such existed, knowing the law to be that when such irregularity does not affirmatively appear from the record it must be taken advantage of by plea |