[Civ. No. 2033. First Appellate District.-May 31, 1917.]

G. ALBERT SMITH, Respondent, v. GEORGE LOBB et al..

Appellants.

LANDLORD AND TENANT- TERMINATION OF LEASE - SUFFICIENCY OF TENDER.-A lease giving the lessor the right to terminate it on the first day of December of any year during the term by paying to the lessee such amount as might be due him for certain reclaiming and leveeing work which the lease provided he was to do, and for which he was to be paid a stipulated sum per acre, is terminated by leaving a properly indorsed certificate of deposit for the amount in question with a bank of excellent standing convenient to the lessee's place of business, with a written request to notify the lessee that the certificate was there subject to his order, notwithstanding the bank misunderstood the instructions and notified the lessee that the certificate had been left with it to be held pending settlement between the parties in regard to some levee work, where the lessee thereafter learned that the certificate was being held subject to his order, and made no objection at that time, or at any other time, to the time or mode of the tender.

ID. TENDER OF CHECK-PAYMENT OF MONEY OBLIGATION.-The tender of a check or of a certificate of deposit in payment of a money obligation is good unless objected to.

APPEAL from an order of the Superior Court of Fresno County granting a new trial. George E. Church, Judge.

The facts are stated in the opinion of the court.

H. P. Brown, John G. Covert, and M. K. Harris, for Appellants.

L. L. Cory, Frank Kauke, and C. K. Bonestell, for Respondent.

KERRIGAN, J.-This is an appeal by defendants from an order granting a motion for a new trial in an action for conversion after verdict and judgment for defendants.

The plaintiff and defendant George Lobb had entered into a lease, under which Lobb, the lessor, might on the 1st of December of any year during the life of the lease terminate it by paying to the plaintiff, the lessee, such amount as might be due him for certain reclaiming and leveeing work which

the lease provided he was to do and for which he was to be paid a stipulated sum per acre. The amount that was due the plaintiff on December 1, 1913, under this arrangement is not disputed, but he asserts that the defendant Lobb did not. at that time pay him that amount, or make a legal tender thereof, in an effort by said defendant to terminate the lease. If this be true, it follows that the lease was not canceled, and that plaintiff was entitled to a certain proportion of the crop raised on the demised premises in the year 1914, which was withheld by said defendant, and which withholding forms the basis of the conversion alleged in the complaint.

The case was tried before a jury, and judgment went for the defendants, but the trial court granted plaintiff's motion for a new trial on the ground, as was admitted at the oral argument of this appeal, that the trial court was of the opinion that it had fallen into error in admitting certain evidence offered by defendants relating to an alleged tender by defendant Lobb to the plaintiff of the amount of money necessary to terminate said lease.

We are of the opinion that the evidence in question was properly admitted by the court, and that consequently its order granting a new trial upon the ground indicated was

erroneous.

The facts regarding the tender are that the defendant, desiring to pay to the plaintiff the amount of money necessary under the provisions of the lease to effect its termination, and having said sum in his possession, attempted on the first day of December, 1913, to find the plaintiff, diligently looking for him at places where he was most likely to be found. Failing to find him, he on the following day left a properly indorsed certificate of deposit for the amount in question with a bank of excellent standing convenient to plaintiff's place of business, and requested the bank in writing to notify the plaintiff that the certificate of deposit was there subject to his order. The bank, however, having misunderstood its instructions, notified the plaintiff that the certificate of deposit had been left with it to be held "pending settlement" between the plaintiff and said defendant "in regard to some levee work." About two weeks later the plaintiff called at the bank to ascertain the particulars of the deposit, and he then learned that the certificate of deposit was properly indorsed and was then subject to his order, and that he could have the certificate it

self or its equivalent in money. This tender, as we understand the record, was kept good. Neither at that time nor at any time prior to the trial did plaintiff object to the time or to the mode of the tender, and hence, under the settled rule, he must be deemed to have waived any objection that he might have made thereto. It has been held that the tender of a check or of a certificate of deposit in payment of a money obligation is good unless objected to. (Mitchell v. Vermont Copper M. Co., 67 N. Y. 280; Becker v. Boon, 61 N. Y. 317. See, also, Rohrer v. Bila, 83 Cal. 51, [23 Pac. 274]; Kofoed v. Gordon, 122 Cal. 314, 320; Hidden v. German Savings & Loan Soc., 48 Wash. 384, [93 Pac. 668]; Civ. Code, secs. 1489, 1501.)

The tender being made in good faith, and any informalities in the deposit in the bank of the amount due him being waived by plaintiff's failure to object to it as made, the lease was thereby terminated and the obligation of said defendant to plaintiff extinguished. (Civ. Code, secs. 1500, 1504; Colton v. Oakland Bank of Savings, 137 Cal. 376, [70 Pac. 225]; Baker v. San Francisco Gas etc. Co., 141 Cal. 710, [75 Pac. 342]; 38 Cyc. 132, 163.)

It thus appearing that the evidence of tender and deposit with the bank was properly admitted, it follows that the court erred in finally holding otherwise and in granting upon that ground the motion for a new trial. The order is reversed.

Richards, J., and Beasly, J., pro tem., concurred.

[Civ. No. 2305. Second Appellate District.-May 31, 1917.] W. H. BOSS, Petitioner, v. WALTER A. LEWIS, as County Auditor, etc., et al., Respondents.

VITAL STATISTICS ACT-FEES OF LOCAL REGISTRARS-PAYMENT OUT OF COUNTY TREASUry—ConstitutiONAL LAW.-The provisions of the Vital Statistics Act which impose upon the county treasury the burden of payment of a local registrar's fees are not violative of article XI, section 13, of the constitution, as an attempt on the part of the legislature to delegate to a private individual the power to appropriate and interfere with county money, nor are they violative of the provisions of article XI, section 12, taken with article XIII, section 14, of the constitution.

APPLICATION for a Writ of Mandate originally made to the District Court of Appeal for the Second Appellate District to compel the issuance and payment of a warrant for fees of a local registrar under the Vital Statistics Act.

The facts are stated in the opinion of the court.

Kemper B. Campbell, for Petitioner.

A. J. Hill, County Counsel, and Roy V. Reppy, Assistant City Counsel, for Respondents.

CONREY, P. J.-The petitioner is the city clerk of the city of Huntington Park, a city of the sixth class. As such city clerk he is local registrar for the primary registration district comprised within the city of Huntington Park, as provided by chapter 378, found at page 575 et seq. of the Statutes of 1915. In this proceeding he seeks to compel the county auditor of the county of Los Angeles to issue his warrant payable out of the county treasury for certain fees to which the petitioner claims to be entitled under the provisions of that act, and to compel the county treasurer to pay the same.

For convenience, we will designate the statute as the Vital Statistics Act.

The state board of health is an official body authorized by article XX, section 14, of the state constitution, and established in accordance with certain provisions of the Political Code. (Pol. Code, secs. 2978-2984.) The code sections authorize the state board of health to appoint a secretary, whose duties are duly defined and who is a civil executive officer. In the Vital Statistics Act it is provided that the secretary of the state board of health is ex-officio state registrar of vital statistics, and that he "shall have full supervision and control over the central bureau of vital statistics which is hereby authorized to be established by said state board of health." It is directed that the state board of health shall appoint a competent vital statistician and a clerk, and "shall provide for such clerical and other assistants as may be necessary for the purposes of this act." It is provided that the state registrar shall have charge of the registration of births, marriages, and deaths; and that the state board of health shall be charged with the uniform and thorough enforcement

of the law throughout the state, and shall promulgate any additional rules or regulations.

Certain portions of the Vital Statistics Act read as follows: "Sec. 3. For the purposes of this act the state shall be divided into registration districts as follows: each city and county, city and incorporated town and each county exclusive of the portion included within cities and incorporated towns shall constitute a primary registration district." "Sec. 4. . . . the clerk of each city and incorporated town shall be the local registrar in and for such primary registration district and shall perform all such duties of local registrar as hereinafter provided; . . . " "Sec. 20. Each local registrar shall be paid the sum of twenty-five cents for each birth certificate and each death certificate properly and completely made out and registered with him, and correctly recorded and promptly returned by him to the state registrar, as required by this act. . . . All amounts payable to a local registrar under the provisions of this section shall be paid by the treasurer of the county in which the registration district is located, upon certification by the state registrar. . . . " The duty of county auditors to issue warrants in favor of persons entitled thereto in payment of claims and demands chargeable against the county is defined by section 4091 of the Political Code.

It is conceded that the collection of vital statistics is a state function and that the local registrars are state officers, and that the county charter of Los Angeles County contains no provisions affecting the state's general powers in the particulars at issue in this proceeding. The proper disposition of this case requires nothing more than that we pass upon the specific propositions urged by counsel for respondents, who contend that those provisions of the Vital Statistics Act which impose upon the county treasury the burden of payment of a local registrar's fees are unconstitutional and void. Those propositions are stated as follows: (1) That the provisions in question are violative of article XI, section 13, of the constitution, and are an attempt on the part of the legislature to delegate to a private individual the power to appropriate and interfere with county money. (2) That the legislature has not the right to require a county to meet any portion of the burden of government within its confines with which the county has no connection whatever. (3) That the legisla