praised value. Other conditions were also provided not necessary here to notice.

The present action was begun in July, 1907, by the mortgage debtors to set aside the sale made by the sheriff. To a complaint embodying the foregoing facts the several defendants separately demurred, which demurrer was on a hearing sustained by the trial court. This appeal is from a judgment of dismissal and for costs entered against the plaintiffs after they had elected to stand on their complaint and had refused to plead further.

issued and served, and the cause proceeded | of division, at least 80 per cent. of its apregularly to a decree of foreclosure, which was entered on February 5, 1898. On February 24, 1898, some 19 days after the entry of the decree, an execution and order of sale was issued thereon, under which the sheriff of the county in which the land is situated sold the land to the mortgagee; he being the highest and best bidder therefor at the foreclosure sale. In making the sale the sheriff followed the procedure mapped out by the statute relating to foreclosure sales in existence at the time the mortgage was executed. That statute provided, in substance, that a decree of foreclosure should [1] The question presented by the record, be enforced by execution directed to the namely, which of these statutes was the sheriff; that the execution should contain a sheriff obligated to follow in conducting the description of the mortgaged property; and sale, was before this court as to some of its that the sheriff should indorse upon it the features in the case of Swinburne v. Mills, time when he receives it, and should there- 17 Wash. 611, 50 Pac. 489, 61 Am. St. Rep. upon forthwith proceed to sell the mortgag- 932. It was there held that the provisions ed premises, or so much thereof as might be of the later statute to the effect that the necessary to satisfy the decree, after giving sheriff must, after levying upon the land to notice of such sale by posting a written or be sold, delay the sale for one year, and printed notice of the time and place of sale, cause an appraisement of the land before particularly describing the property, for such sale, were not applicable to a case, such four weeks successively, in three public as the one now at bar, where the mortgage places of the county where the property is was executed prior to the enactment of the to be sold, and by publishing a copy there- statute, for the reason that it impaired the of once a week for the same period, in a obligation of the mortgage contract. Connewspaper of the county, if there be one, or, cerning this question, the court said: "This if there be none, then in a newspaper pub- brings us then to the third proposition, viz.: lished nearest the place of sale. Due return Is the act unconstitutional so far as its apof the sale was made by the sheriff on plication to contracts made prior to the pasMarch 29, 1898, and the sale was confirmed sage of the act is concerned? It will thus on April 30, 1898. A sheriff's deed to the be seen that this case involves the principle purchaser followed in due order. In the of inviolability of contracts. This principle meantime, however-that is to say, between the courts have always protected, no matter the time of the execution of the mortgage from what quarter, or under what guise, it and the commencement of the foreclosure has been assailed, whether by a party to the proceedings-the Legislature made certain contract who has sought to vary its terms, radical changes in the law relative to sales or by legislative enactments in his interests. of property under decrees of foreclosure and It is a principle which is founded upon honexecutions on ordinary money judgments. esty and good faith, and finds its support It provided that on receiving the writ of ex- in ethics as well as law, and it was recogecution the sheriff should indorse thereon, nized and enforced before it became a conor attach thereto, a description of the prop- stitutional guaranty. It gives stability to erty to be sold; that he should file with the business transactions. In fact, it makes clerk of the court where the property is sit- them possible. It gives value to contracts, uated, and with the clerk of the court issu- and without the upholding of this principle ing the writ, a copy of the writ with such neither civilization nor governments could description attached to or indorsed thereon; exist. A contract is an agreement to do or that one year after the time of filing such not to do a particular thing. The obligation levy he should give notice that the property is the binding force of the contract. The levied upon would be sold at public auction in Constitution prohibits the passing of laws satisfaction of the judgment by posting notic- which impair the obligation of a contract. es of such sale in three public places in the The practical question then is: What is an county where the sale is to be made, one of impairment of a contract? Webster's defiwhich should be in a conspicuous place on nition of 'impair' is: "To make worse; to the property to be sold, four weeks prior to diminish in quantity, value, excellence or date of sale, and by publishing a copy there- strength; to deteriorate.' Then, if the value of once a week for the same period in the of a contract is deteriorated or lessened by official paper of the county, or, if there be the passage of an act, the obligation of the none, then in a newspaper published nearest contract is most certainly impaired. Then the place of sale. It was provided, more- the question arises: Was the contract of over, that no sale could be had at all until this mortgagee deteriorated or made less after the land had been appraised, and that valuable by the passage of this act? It is at the sale the land must bring, if capable a principle of law so often enunciated and 115 P.-33

[4] Moreover, this action was begun, as will be noticed from the dates given, more than nine years after the sale took place, and no reason is shown why it could not have been prosecuted at any time during that period. On the ground of laches alone the court would be justified in denying relief on any ground other than the actual invalidity of the sale.

The judgment is affirmed.

DUNBAR, C. J., and PARKER, MOUNT, and GOSE, JJ., concur.

so uniformly maintained that the law which | warranted the court in refusing to confirm is in existence at the time a contract is the sale, we do not think they rendered the made becomes a part of the contract, that sale so far void as to be incurable by the it would be idle to cite authorities on that order of confirmation. proposition, or to further mention it. In this case it is especially stipulated in the mortgage that the laws in force at the time the contract was made should become a part of the contract; but, in the absence of such stipulation, the effect would be exactly the same. Under the law in existence at the time the contract was made, the mortgagee had a right to the sale of this land at once upon the issuance of his execution, subject only to the redemption provided for by law. This was a valuable right, and a right no doubt that was taken into consideration by the judgment creditor, or, in this case, the mortgagee, when the contract was made. The law now compels him to wait more than a year after judgment before he can have the sale made. It seems to us to be beyond controversy that, as to antecedent contracts, this provision of the law is void." Further on in the opinion the court cited and quoted from a number of cases from the Supreme Court of the United States, showing that the question was one of federal cognizance, and that the highest federal court had announced a similar rule. In the light of these cases, therefore, there can be no question that the sheriff was justified in selling the property under the execution without the delay of a year and without having the land appraised.

[2] But, while the courts deny the power of the Legislature to make such radical changes in the remedy for enforcing a contract as to impair its obligation, they are agreed that whatever belongs merely to the remedy, and does not affect the obligation of the contract, can be changed at the pleasure of the Legislature. So in this instance it was perfectly proper for the Legislature to require on a foreclosure sale that one of the notices thereof be posted in a public place on the land to be sold, and that copies of such notices be published in the county official paper if there be one, although the law in force at the time the contract was entered into allowed such notices to be posted in three public places in the county generally, regardless of the location of the land, and allowed copies thereof to be published in any paper published in the county where the land was situated, regardless of the question whether such paper was the county official paper or not.

(50 Colo. 464) BOARD OF COM'RS OF MONTEZUMA COUNTY v. FREDERICK. (Supreme Court of Colorado. May 1, 1911.) 1. TRIAL (§ 404*)-"GENERAL FINDING”—EF

FECT.

issues in favor of the successful party.
A "general finding" is a finding on all the

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 957-962; Dec. Dig. § 404.*

For other definitions, see Words and Phrases, vol. 4, p. 3064.]

2. APPEAL AND ERROR (§ 1011*)-FINDINGSCONCLUSIVENESS.

A finding on conflicting evidence is conclusive on appeal.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3983; Dec. Dig. § 1011.*] 3. ELECTIONS ($ 157*)-LIST OF NOMINATIONS -PUBLICATION-STATUTES.

1625k, 1625r, providing for the publication in Under 3 Mills' Ann. St. Rev. Supp. $$ newspapers of a list of nominations for state and county officers in the form in which such nominations shall appear on the official ballots, dates and for the political designations, a newsand authorizing separate columns for the candipaper publication of a list of nominations in two columns, the name of the office and the candidate being in one column, and the party designation being in the other column, is proper, and the publisher is entitled to compensation therefor.

[Ed. Note. For other cases, see Elections, Cent. Dig. § 130; Dec. Dig. § 157.*] 4. NEWSPAPERS (§ 5*)-NOMINATION OF CANDIDATES-PUBLICATION-COMPENSATION.

Under 3 Mills' Ann. St. Rev. Supp. § 1878, declaring that publishers for the publication of a list of nominations for state and county officers shall be paid at a specified rate for each and not by rule, and necessary blank spaces line, etc., the compensation must be by line, must be paid for as if solid type.

[Ed. Note. For other cases, see Newspapers, Dec. Dig. § 5.*]

5. COUNTIES (§ 134*)-"COUNTY PRINTING." ations for state and county officers as required A newspaper publication of a list of nominby statute is "county printing," for the work must be paid by the county.

[Ed. Note. For other cases, see Counties, Cent. Dig. § 202; Dec. Dig. § 134.*]

[3] In the case at bar it is alleged that no one of the notices of sale was posted on the land, nor was a copy thereof published in the county official paper, and the question is presented whether these omissions avoid the sale. It is our opinion that they 6. NEWSPAPERS (§ 5*)-LIST OF NOMINATIONS do not. While the omissions may have renThe printing authorized by 3 Mills' Ann. dered the sale so far irregular as to have St. Rev. Supp. § 1625k, requiring the county

-PUBLICATION-COMPENSATION.

clerk to provide for the publication of lists of nominations for public office in not less than two, nor more than four, newspapers published within his county, one of which publications must be made in a newspaper advocating the principles of the political party at the last pre.ceding election which cast the largest number of votes, etc., is not necessarily within the scope of a contract for the county printing, since the selection of the newspapers rests with the county clerk, who must be guided by the statutory directions, and a newspaper chosen may not include the one holding the contract for county printing, though a contract for county printing may be made so as to apply to such a publication on the county clerk selecting the newspaper whose publisher holds such contract.

[Ed. Note. For other cases, see Newspapers, Dec. Dig. § 5.*]

tified in finding that no instructions other than the appearance of the clerk's copy itself were given to the plaintiff until after the form had been set up and published in one issue. The copy which was first furnished was concededly incomplete, as full information with regard to the list had not been received by the clerk from the Secretary of State at the time the first copy was prepared. Later a second and complete copy was furnished by the clerk and published in another issue of plaintiff's Journal; the form being the same as in the first issue.

After the first publication, it may be that explicit direction was given by the clerk to the plaintiff to publish the list as solid matter. The court, however, in the circumstanc

Error to District Court, Montezuma County; Charles A. Pike, Judge. Proceedings by C. A. Frederick to estab-es, was justified in finding that, in legal ef

lish a claim against the County of Monte zuma. From a judgment of the District Court allowing plaintiff's claim in full, rendered on appeal from a decision of the Board of County Commissioners disallowing the claim in part, the Board brings error. Ꭱ . versed and remanded.

S. W. Carpenter, for plaintiff in error. W. F. Mowry, for defendant in error.

fect, such verbal instructions were not seasonably given so as to make them material to the present controversy. The list as printed the second time was in two columns, the name of the office and the candidate with his residence and place of business being in the first column, and opposite the name of each candidate and in a separate column was the appropriate party designation. We must not be understood as holding that a publisher of a list of nominations which is required by our statute may determine for himself the form in which it shall appear in his newspaper. Indeed, we think, if that power is vested in any ministerial officer, the clerk should prescribe the form, and, if any mistake is made therein, the publisher will be protected in following the instructions of the clerk, and the latter, if anybody, will be held responsible if any mistake is made in the form. In this case, however, it is appropriate to say that section 1625k, 3 Mills' Ann. St. Rev. Supp.. which constitutes the authority to the clerk

CAMPBELL, C. J. The plaintiff, Frederick, who is the publisher of the Montezuma Journal, presented to the board of county commissioners of Montezuma county his claim of $110.88 for publishing in his newspaper a list of nominations for state and county officers which the county clerk had certified to him for such purpose. The board allowed the amount of $66.36 thereon and disallowed the remainder. From its determination the plaintiff appealed to the district court of Montezuma county, where a trial was had resulting in a judgment for plaintiff in the full amount of his claim. | for requiring such lists to be published, diThe board sued out this writ of error to review it.

[1] The finding of the district court was general, which means that all the issues were found for the plaintiff.

[2] In so far as, if at all, there is a conflict in the evidence, the finding of the district court is conclusive upon us.

rects that the publication "shall be, as far as possible, in the form in which such nominations shall appear upon the official ballots." Section 1625r of the same volume, which pertains to the form of the printed official ballot, while it does not in specific terms provide for a separate column for political designations, yet we think that a fair interpretation or construction thereof so requires, since opposite the name of each candidate must be added the party name, and this, in some cases at least, might not be done without double columns. Such being true, and under the facts, we cannot say that plaintiff may not recover against the county because of an alleged disregard of the statute, or for a supposed nonobservance of the directions of the clerk. As matter of fact, the list was published in the form contemplated, or at least permitted, by the statute, and, if the law is not what it should be, the General Assembly is the ap

[3] It appears that a copy of the list which was furnished to the plaintiff by the county clerk indicated only one column of solid matter. That is, that there were not blank spaces or separate or double columns; while the form, as it appeared in the newspaper, was two separate columns, the second one showing considerable blank space. Our reading of the record discloses that there is some dispute as to whether the county clerk at the proper time gave any verbal instructions to the publisher as to the form. The evidence is not very definite upon this point; there being an apparent conflict. Certain it is, however, that the court was jus-propriate body to change it.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

[4] A second question is as to the amount | the county, even if the plaintiff assumed its of the recovery. In measuring the space oc- obligations, because it was not such a publicupied by the printed list in the newspaper, cation as, under the contract, plaintiff could the plaintiff, in his estimate, observed what demand for, or such a contract as the board is known in the printing trade as the "rule" would be compelled to insert in, his paper. instead of "line" measurement. Section The selection of the newspapers rested with 1878, 3 Mills' Rev. Supp., declares that pub- the county clerk, who must be guided by the lishers of newspapers for the publication of directions which the statute itself prescribes, such advertising matter as this shall be and, if followed, the newspaper chosen might paid at a certain rate for each line of non- not include the one that held the contract for pareil. It also provides that all "rule work county printing, and, in any event, such puband necessary blank space shall be paid for lication would be in at least one newspaper as if solid type." The section, however, per- that was not under contract. If the printmits the county by contract to stipulate for ing of this list was not within the contract, a less price. Whether this printing was the price therefor must be at the legal rate done under contract, which is the subject of fixed by section 1878. Of course a contract our third and later inquiry, or was made at for "county legal printing" might be made the legal rate independent of contract, is im- so as to apply to such publications as this, material so far as the method of measure- if the county clerk selected therefor the ment is concerned. It must in any case be newspaper whose publisher held such conby "line" and not by "rule." Whatever nec- tract. But plaintiff testified in effect-and essary blank space there is, however, must he must have been believed by the trial be paid for as if solid type. It seems that court-that in his purchase of the newspaper the court adopted the rule measurement ob- he did not intend to assume, and did not asserved by the plaintiff, and, in this, error sume, the obligations, if any, of his vendor to was committed. publish these lists at the contract rate.

A third question is as to whether the The record does not contain sufficient data printing was done under contract. The upon which a proper judgment may be encounty board had made a contract with a tered by us. The judgment must be reversformer publisher and owner of this news-ed for a new trial by the district court. The paper at a rate lower than the statutory computation of the amount to which plainrate, and it is claimed by the county that tiff is entitled must be based upon the list when plaintiff bought from such owner he as printed in the form in which it appeared assumed and agreed to carry out the obli- in his newspaper, to be estimated by the line. gations of his vendor's contract with the instead of by the rule, measurement, with county. just allowance for necessary blank space to be reckoned as solid type, and at the legal rate prescribed by section 1878, unless, at the second trial, further evidence establishes that plaintiff assumed a contract that required him to do such work at the contract, and lower, price.

[5] The plaintiff claims, first, that this is not county printing; but with this we cannot agree. It is work for which the county must pay and is clearly county printing; but such conclusion is not determinative of the point here involved.

[6] Plaintiff further says that the contract, if he assumed its obligations at all, did not include, or apply to, these lists, and that he did not assume the contract of his vendor, if any, that applied to such publications. In section 1625k, already mentioned, is found the authority of the county clerk for publishing lists of nominations. He must have the publication made in not less than two nor more than four newspapers published within his county, and one of such publications must be made in a newspaper which advocates the principles of the political party at the last preceding state election which cast the largest number of votes, and another such publication shall be made in a newspaper which advocates the principles of the political party which at such election cast the next largest number of votes. While the printing of such lists is "county legal printing" yet we do not think the evidence shows, at least the trial court did not find, that this printing necessarily comes within the scope of the contract which plaintiff's vendor had with

The judgment is reversed, and the cause remanded for a new trial in accordance with the views expressed in this opinion. Each party to pay his, or its, own costs of the appeal.

Reversed and remanded.

WHITE and BAILEY, JJ., concur.

(50 Colo. 248) STEWART et ux. v. AUSTIN. (Supreme Court of Colorado. Dec. 6, 1909. On Rehearing, May 1, 1911.) WATERS AND WATER COURSES (§ 247*)-IRRIGATION DITCH-USER-EXTENT OF RIGHT.

ties in an irrigation ditch, evidence held to require a finding that complainant was only entitled to two-fifths of the water flowing in the ditch, while defendants were entitled to the rebound to contribute, to keep the ditch in remaining three-fifths, and that the parties were pair, in the same proportion.

In a suit to determine the rights of the par

[Ed. Note. For other cases, see Waters and Water Courses, Dec. Dig. § 247.*]

Appeal from District Court, Conejos Coun- | the Garcias claimed 155 inches. The claims ty; Jesse G. Northcutt, Judge.