dissenting: This case was assigned for hear-
ing in this court upon the trial docket for the December sitting of 1888, but was continued to the January term 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. Afterward its written opinion was approved, and judgment entered accordingly by this court, without notice to any of the parties of the case, and without any oral argument before this court, or any member thereof. After judgment had *113been rendered, a motion for a rehearing of the case was presented by the plaintiff' in error to this court, and argued orally. In the motion for a rehearing, objection is taken to the judgment of this court, upon the ground, among others, that the “plaintiff in error has not had a hearing before the supreme court.” In the brief filed by the plaintiff in error with the motion for the rehearing, it is said among other things, “That there can be no question under the law, but that upon a proceeding in error from any of the district courts of the state to the supreme court, the plaintiff in error is entitled as a matter of right to a hearing before the court, which right cannot be satisfied by a hearing before commissioners.” When the motion for a rehearing was filed, one of the parties, although willing and anxious, had never had any opportunity to argue the case orally to this court, or any member thereof, and yet, notwithstanding this, judgment had been pronounced against this party. I consider that the precise question involved has never been decided by this court, and as it is one 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 ready and willing to be heard orally, without giving the parties an opportunity for oral argument?
If this were an original proceeding in this court in quo warranto, mandamus, or habeas corpus, I think the decisions already rendered are conclusive that oral argument cannot be denied to either party before judgment. In such cases this court is a trier of facts, as well as of law. In Douglass v. Hill, 29 Kas. 527, it is said by Mr. Justice Brewer, speaking for the court, that—
“A party to a law suit 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 coun*114sel 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. (The State v. Riddle, 20 Kas. 716.) But limiting the time of an argument, and refusing to permit any argument at all, are entirely different matters. The one is the exercise of a discretion, the other is a denial of a right.”
In The State v. Collins, 70 N. C. 241, it is said:
“‘Next to doing right, the great object in the administration of public justice should be to give public satisfaction.’ When Sir Walter Raleigh was put on his trial for treason, the judges attempted to stop him in his defense, but he had the manhood to assert his rights. ‘ My lords,’ said he, ‘ I stand for my life.’ Posterity has vindicated him, and condemned his judges.”
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, has the power to deny to any party the right to orally present his case by attorney to this court, when the cause is regularly called for hearing. The court, however, within reasonable rules may limit the time of oral argument, and also require written briefs and abstracts. Oral argument, in reasonable bounds, is helpful and beneficial to the court, and therefore its denial is both injurious to suitors and the court. In my own case, as a general thing, I am much better qualified to decide a case which is submitted to me upon oral argument, than upon briefs or abstracts only. A court, pushed and pressed with business as our court is, ought to have all the help and assistance that oral argument can give. At least I wish it, if the attorneys are willing to furnish it. If the court had the power to deny to suitors the privilege of having their cases argued orally when called for hearing, I would not favor its exercise, as it does not give satisfaction to the profession, or to the parties having cases to be decided. When I was in *115the active practice I preferred to argue my jury cases before the jury returned a verdict; I also preferred to argue my law cases to the court before 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 others are set down for argument before the court, then partiality is shown, unless the suitors have the privilege of deciding whether they will orally argue their cases to the court or to the commission. If the practice of public assignments is to continue, suitors should have the option where to go. That this court, prior to the practice followed since March, 1887, always understood that parties had the right to oral argument of their cases before judgment, is shown by the adoption and publication of the following rule: “ One hour only, except with the consent of the court, shall be consumed in the oral argument of a cause, by counsel for either party.” This rule is still in force, not modified or repealed, and this rule applies solely to the supreme court, not to the commission, or to any other body. A similar rule has always been in force ever since the existence of'the supreme court of the state. A like rule for oral argument was adopted by the supreme court of the territory before the adoption of the state constitution. The judgment in each case must be rendered by this 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 aud 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.
I think the court has the inherent power to call to its assistance, “to aid and assist it in the performance of its duties,” amanuenses, clerks, and stenographers, or other persons of like capacity; and also in some cases to appoint referees or commissioners, “ to aid and assist in the performance of its duties; ” but in no case can the court abdicate its duty and throw upon *116its amanuenses, clerks, stenographers, referees or commissioners the judicial duties demanded and required of it by the constitution and laws. In no case, I think, can any judgment be rendered by this court, where the parties have not waived oral argument, until the parties have had an opportunity to orally argue the case, within reasonable rules and regulations. I am of the opinion that only those cases should be referred to the commission, which the parties submit on briefs, and thereby waive oral argument; and where other cases are assigned to the commission, then the report of the commission should be filed in the court and the parties given reasonable time to examine the report and to orally argue the case and report in the court, before the report is acted upon by the court or judgment is rendered. 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.
The intimation in the opinion that the plaintiff in error has had an opportunity to be heard orally before the court upon the motion for a rehearing, and therefore has no reasonable ground of complaint, is to me unsatisfactory. Courts, after all, are only human, and after the members of a court have consulted together over a case, have reached conclusions as to the facts and law involved, have formulated their conclusions in a written opinion, and thereon have rendered judgment, oral argument upon a motion for a new trial, or a rehearing, is not as beneficial as if presented before the decision is given and the judgment rendered. After the judgment is rendered, the party defeated has the laboring oar upon the motion for a new trial or a rehearing. This, in my opinion, places the party who has had no opportunity to orally argue his case before judgment in a disadvantageous position. But if a party is entitled to oral orgument before judgment, can it be fairly said that the law is complied with, if he is only permitted to argue his case upon a motion for a new trial or a rehearing ? If he is entitled to an oral hearing before judgment, is the law complied with if he is only permitted to argue the case after judgment?
*117Again, 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 perverted and injustice done for fear of being charged with inconsistency.
The case of The State v. Coulter, 20 Pac. Rep. 525, is referred to, to sustain the foregoing opinion. In that case Coulter was convicted upon one count for the unlawful sale of intoxicating liquors. (40 Kas. 88.) Upon the motion for the rehearing, the facts presented in this case were not urged in that. The only reference to the commission in the motion for the rehearing was as follows: “ Because the said opinion filed in this case was filed by a commissioner and not by the court.” In the brief filed by the appellant with the motion for the rehearing, the reference to the commission was no broader than in the motion. I prepared the opinion upon the rehearing, but did not examine or consider the questions now involved. No authorities were cited or presented in the Coulter case upon the question of the right of oral argument; nor were any authorities cited or presented attacking the constitutionality of the acts creating the commission; nor were any authorities cited or presented challenging the practice of this court, in referring cases to the commission. In California, *118where a somewhat similar statute authorizing a commission is in force, the commission does not, as I am reliably informed, hear oral arguments. In Indiana, the act authorizing the commission has been declared unconstitutional. (Hovey v. Noble, 21 N. E. Rep. 244.) In Ohio, where commissions have been in existence, the constitution of the state expressly provides for their creation, and the commission in that state is a constitutional body.
If it were intended by chapter 148, Laws of 1887, and chapter 246, Laws of 1889, to deprive this court of the power to hear oral arguments, or if it were intended to confer judicial powers upon the commission (except in a limited degree), or if it were intended to compel this court, nolens volens, to refer cases to the commission, then I think the acts would be unconstitutional; but I do not so construe them. The material part of these acts is as follows:
“The governor of the state of Kansas, by and with the consent of the senate, upon and after the'taking effect of this act, shall appoint three persons, citizens of the state, of high character for legal learning and personal worth, as commissioners of the supreme court. It shall be the duty of said commissioners, under such rules and regulations as said court may adopt, to aid and assist the court in the performance of its duties in the disposition of the numerous cases pending in said court.”
The commissioners are merely “to aid and assist the court in the performance of its duties.” Of course, this aid and assistance must be within the limitations of the constitution, and, so long as the duties conferred upon the commission by this court are within the terms of the constitution, said chapters 148 and 246 cannot be declared unconstitutional, nor the duties performed held to be illegal or void.
As before stated, this court has the inherent power to appoint amanuenses, clerks, stenographers, referees, or commissioners, to aid it in the preparation of its opinions; and this court may refer, if it so chooses, any of the numerous cases now pending, or that may hereafter be pending in the court, to such commissioners, and avail itself of their aid aud assist*119anee in preparing opinions: this is no imposition on the court. But it may also refuse to refer any case, if it chooses. Within the rules and limitations stated, I think the commission useful and valuable. - I highly esteem the members thereof for their learning, ability, and energy; and hence a reference of cases to them, within the foregoing limitations, will be advantageous to the court, the parties, and the public.
In Hovey v. Noble, supra, all that was required to be decided was, “that where assistants are necessary to enable judges to discharge their duties, the court must choose those assistants.” If the governor appoints assistants, and the court adopts them by referring cases to them, the court substantially chooses the assistants. Again, in the Indiana statute, one of the sections (the 5th) assumes to constitute the persons chosen for the commission, an independent body, and invests them with powers greater than those conferred upon the Indiana supreme court. Said chapters 148 and 246 of this state have no such provision.
As the plaintiff in error, when it filed its motion for a rehearing, had never had any opportunity to orally argue this case in court before judgment was pronounced, and as it never waived its right to oral argument,'I have not referred to the merits of the original case, or to the law questions involved therein. In my opinion, the order and judgment of this court should be set aside, and the case set down for argument in due and regular form, as other cases should be heard when parties desire oral argument before judgment.