specially concurring.
It occurs to me that the most powerful and unanswerable argument in favor of the affirmance of the judgment, *312lias been put in the hands of the growers by counsel for the association themselves. Whatever may be said for or against the slowness or deliberation, and ultimate failure of the association to sell the 1928 beets, there was no lack of interest when the case got to this court. We were asked to advance it on the calendar, which we did. On June 7, 1928, a joint motion was filed by all of the attorneys for the litigants, and signed also by the attorney for the sugar company. They asked for an oral argument at the earliest possible date, “because of the public nature of the matters herein involved affecting many thousands of persons directly or indirectly. ’ ’ A few days later — June 12, counsel for the association filed a separate motion, again asking for a prompt hearing, on numerous grounds. We were then told that the sugar beets would be harvested from many thousands of acres of lands in Colorado this year;; that the harvesting in northern Colorado begins early in September of ■ each year; that the only purchaser of sugar beets in the localities where most of the members of plaintiff in error association have their farms is the Great Western Sugar Company; that the beets must be delivered for the manufacture of sugar as soon as they are harvested, ‘ ‘ and said beet crop must be harvested within a short period of time.”
We are told also in the motion referred to, of the uncertainty as to title, that is, the right to sell the beets; that the district court’s decision had rendered it uncertain, and that unless we consider the case and decide it by harvest time, the uncertainty will continue, “and grievous harm will result not only to the growers of the beets but also to the public generally, and in particular to the bankers, merchants, laborers, and to all others who have an interest in said beet crop by virtue of mortgage, pledge or otherwise, all of whom are directly or indirectly dependent upon the proceeds of sugar beets to be so grown.” Further, it is said by counsel for the association, unless the case be decided by harvesting time, “it is *313inevitable that many lawsuits will result and there may even be disturbances of the public peace. ’ ’
After painting this black picture, one would naturally suppose that the association would offer the alternative of a brighter side if the case be reversed, but it has failed to do so. On the contrary, if the case be reversed and a new trial be ordered, the crops might rot or freeze while the litigation flourished. If the association’s demurrer to the complaint be sustained, it would be just as bad, for although it is now July, the association has not made a contract with the sugar company, and can make none, so far as we are told, better than the one that the grower made, after waiting for the association to act. In fact, we have not been advised that the association could even make that one now, though the grower can and has done so, subject to the court’s approval. The longer the uncertainty continues, the worse conditions become. Some growers may be able to stand it, but others, less fortunate, like Monroe, apparently cannot. It thus not only appears from this record, and from the statements of counsel for the association, that this cause must be decided before marketing time, but it likewise appears that an immediate decision is necessary because those who have planted under the qualified contract are now greatly embarrassed in their financing operations. Merchants and bankers are loath to extend credit on the faith of a crop now planted and growing which may never be marketed, or marketed only at a tremendous loss. That embarrassment, however, would not be relieved, but on the contrary would be magnified into ruin, by a reversal.
It was said by Mr. Justice Brewer in Montana Co. v. St. Louis Mining and Milling Co., 152 U. S. 160, 170, 14 Sup. Ct. 506, and it applies here: “Indeed, it may be said to be generally true that the weaker a party and the smaller his interest, the greater the need of the strong hand of the court, to ascertain and protect his rights.” I am sure, though, that every member of this court agrees with the trial court that the board of directors of *314the association are honest in their interpretation of the contract.
Whether the grower will be released in all cases if the association fails to make a sale of beets by planting time, that is, whether time is of the essence in this respect, it is unnecessary to say, because we have now arrived at a place far beyond planting time. Counsellor the association have only recently said in their motion that the beet crop must be harvested within a short period of time. The contract must be performed within a reasonable time. In the nature of things, particularly with reference to annual crops, performance of a contract might be postponed or delayed to such an unreasonable extent that it amounts to no performance, or to a breach of contract, A mere reference to the above facts stated in the motion of plaintiff in error, is enough to show why the period of termination has been reached.
Copious citations of authorities are unnecessary to show the extent to which the highest court of the land, as well as state courts, including our own, have gone in upholding the legitimate exercise of the statutory powers of co-operative marketing associations. Decisions are collated in Liberty Warehouse Co. v. Burley Tobacco Growers’ Co-op. Marketing Ass’n, (U. S.), 48 Sup. Ct. 291, 72 L. Ed. 292. Among the citations is Rifle Potato Growers Co-op. Ass’n v. Smith, 78 Colo. 171, 240 Pac. 937., Our attention is not called to any case, however, where an abuse of an association’s power, or an ultra vires act by such corporation, or breach of its contract, has met with judicial sanction, or that it cannot be corrected. If this were so, such corporations would certainly be in a class by themselves, beyond the law, and it would defeat their own ends if vested with such supreme power, not subject to restraint. The growers are the principals, or masters; the association is the agent or servant. It was written long ago, “The servant is not greater than his lord. ’ ’ In the nature of things, it is still the law.
*315Counsel bring up and argue certain constitutional provisions, like.due process of law, and the validity of certain features of the co-operative marketing act, and so on, but they are not necessary to the determination of the cause. It is a universal rule under such conditions, not to pass on them. Mr. Chief Justice Taft said in Howat v. State of Kansas, 258 U. S. 181, 184, 42 Sup. Ct. 277, in speaking of a Kansas statute, involving compulsory arbitration between labor and capital: “Obviously we' should not pass upon the constitutional validity of an act presenting such critical and important issues unless the case before us requires it. ’ ’ The case from which we have quoted was cited in Fox Film Corporation v. Trumbull, 7 Fed. (2d) 715, 721, wherein the court says: “The federal courts do not consider the constitutionality of a state statute, unless the case before the court makes it necessary.” In Gale v. Statler, 47 Colo. 72, 105 Pac. 858, Mr. Justice Campbell, for the court, says: “It is thoroughly established in this jurisdiction, to which the citation of our decisions is unnecessary, that a constitutional question will not be passed upon unless it is essential to the determination of the case in hand.” Gale v. Statler, was cited with approval in an opinion by Mr. Justice Denison, in Murray v. County Commissioners, 67 Colo. 14, 16, 185 Pac. 262. Speaking of a constitutional question, the Justice there said: “We do not decide the second point, because it is a constitutional question which would require the full bench, and it is not necessary to determine the case.” To like effect: People v. Pirie, 78 Colo. 361, 365, 242 Pac. 72; Platte Land Co. v. Hubbard, 30 Colo. 40, 69 Pac. 514; Joralman v. McPhee, 31 Colo. 26, 36, 71 Pac. 419; Gutshall v. Kornaley, 38 Colo. 195, 200, 88 Pac. 158; Chambers v. People, ex rel Storer, 70 Colo. 496, 499, 202 Pac. 1081.
The business of the court is to decide pending cases, not abstract legal subjects, constitutional or otherwise, disconnected with the case or unnecessary to the decision, however desirable it may be to have such themes dis*316cussed. See our unanimous decision en banc, opinion by Mr. Justice Burke, in Gabriel v. Board of Regents, 83 Colo. 582, 267 Pac. 407; also Olney Springs Drainage District v. Auckland, 83 Colo. 510, 267 Pac. 605.
The court rejected certain evidence of the association, tending to show that the price was not fair nor just for 1928 beets, which price the association had previously agreed to, and which the sugar company and a large number of growers were and are willing to accept. Counsel for the association complain of this refusal to admit evidence, but I think without justification. Although such evidence was rejected at certain stages of the trial, it was admitted later. The witnesses went into the question fully; the evidence was cumulative; and if it be conceded that the witnesses would have repeated or have said all that counsel supposes, still the judgment should stand. The striking feature of it is, that the association complains because of the supposed failure to let in evidence which would tend to show that the association itself proposed a contract with the sugar company, or agreed to it, that was unfair to its principals, the growers, which proposed agreement was accompanied by a condition that the sugar company would bind itself to future years, in respect to a matter about which the association was not authorized to negotiate. In other words, two wrongs or mistakes, instead of one. “A court will not presume a state of facts injurious to fair dealing and common honesty.” 10 B. C. L. 883, and cases there cited. With such unanimity as to price on the part of the parties interested, the presumption is that it was fair, and it is unusual, to say the least, for a party to come into court and ask to be allowed to rebut the presumption of its 'own fairness to its principals. It is not permissible if the principal objects.
One must be unconversant with the record to suppose that it appears therefrom that the association, in the proposed agreement with the sugar company, continued its objections to the alleged unfairness or inadequacy of *317price. On the contrary, the second paragraph of the instrument in question contains this clause: “The directors of the Mountain States Beet Growers Marketing-Association hereby approve and recommend to the member growers the contract proposed by the Great Western Sugar Company for the growing of beets for the year 1928 with the added clause * * * ’’etc. (The italics are mine.)
The material parts of the added clauses are covered in the opinion written by Judge Campbell.
Counsel for the association seek to avoid the significance of the proposed contract in question, with the added stipulations for ensuing years, by calling it a “compromise offer.” However, if this is what it was, and it is so denominated, it must also be remembered that such attempted compromise related to the very matter that the association was in duty bound not to unnecessarily compromise or sacrifice, but to protect, namely, the price of 1928 beets. To sell them for the best price obtainable, was the association’s chief business, not to barter the growers’ rights for something that they had not asked for, i. e., stipulations for future years, however desirable it may have seemed to the' officers of the association to bring this about. In the light of this, the expression, “compromise offer,” becomes of doubtful euphony. I am fully persuaded that the association officers did not break faith with the growers by offering or agreeing to an unfair price; indeed, most if not all of such officers are growers themselves. Much as it is desired that the highest price for beets be obtained, I fear that even the present price has been put in jeopardy by the delay, and that the grower’s request that he be released should be granted. But I base my conclusion on grounds of the growers’ rights, not expediency. r
It is also a mistake to suppose that the offer which is termed a “compromise offer,” was the only evidence of fairness and adequacy of price. There was a great deal of other testimony, some for, and some against. It has *318been said so often that the expression has become stereotyped, that appellate courts are bound by the findings of fact by trial courts, when the evidence is conflicting. I might indulge in quotations from every justice that ever sat on this bench in support of this proposition, but it is unnecessary. The findings, general and special, were for the grower.
I agree with the majority opinion, as expressed by Mr; Justice Campbell, and I am authorized to say that he, as well as the other justices who have concurred therein, also agree with me in that which I have said above.