if the intent of the legislature to create the office is in some way manifested, the court concluded that section 30 is sufficiently indicative of an intent on the part of the legislature to create the office of traffic officer.

In

The absence of any designation of the number of officers to be appointed was considered immaterial by the court on the rehearing. The little exact authority which exists in this matter, however, is apparently contrary to the court's final view. A provision in the North Dakota Motor Vehicle Act similar to section 30 was rejected, in State v. Wetz," as an unconstitutional delegation of legislative power. Furthermore, there is language in several California cases inconsistent with the view in the instant case. People v. Wheeler12 the court says: "The legislature cannot commit to the discretion of others the important function of creating public offices in unlimited or indefinite number.'" (Italics ours.) This statement is quoted with approval in a later case,13 and is almost identical with a statement contained in an important dissenting opinion in an earlier case.14 These several cases were relied upon by the court in support of its original view. In turning to the contrary viewpoint the court sought to explain them away, but was not entirely successful in so doing.15

prescribed most of the duties and all but explicitly stated that there should be this office the case is not a strong authority for the present situation.

Scott v. Boyle supra, n. 4, contains language which supports the court's view here, but the case is not a strong authority because the point involved here was not before the court.

11 Supra, n. 4.

12 (1902) 136 Cal. 652, 655, 69 Pac. 435.

13 Logan v. Shields (1923) 65 Cal. Dec. 291, 292, 214 Pac. 45.

14 Ford v. Board of State Harbor Commissioners (1889) 81 Cal. 19, 36, 22 Pac. 278. In the so-called majority opinion the court held that the statute in question conferred upon an executive board the power of creating an indefinite number of public offices. Chief Justice Beatty and Justice Works, in a vigorous dissent, pointed out that if this were so the statute would be unconstitutional. Only three of the seven justices concurred in the so-called majority opinion. A fourth concurred in the judgment, which was justifiable on entirely different grounds.

In the later case of Farrell v. Board of Trustees, supra, n. 4, the court repudiates the view of the three justices that the legislature could confer this power.

15 On rehearing the court sought to distinguish People v. Wheeler, supra, n. 12, on the ground that the offices involved were county offices and the case was governed by section 5 of Article II of the Constitution of California. The court pointed out that there is a decided difference between section 5 of Article II and section 20 of Article IV of the constitution. The former requires the legislature to provide by general law for the appointment, duties, compensation, etc., of county officials, while the latter section allows the legislature almost free rein in providing for the appointment of all other non-constitutional officers. It is true that the Wheeler case did involve county employees and hence was governed by section 5 of Article II, but it is clear from the court's opinion (page 655) that it first considers the case on general principles apart from these special limitations.

Furthermore, a careful reading of the opinion in the Wheeler case reveals little basis for the statement in the instant case to the effect that the court in the Wheeler case did not have in mind the distinction between the power

The final result arrived at in the instant case can be justified, however, on orthodox principles of constitutional law. Although the legislature cannot delegate its law-making functions, it is well settled that it may phrase its legislation in general terms and assign to administrative boards the duty of filling in the details and of determining the exact meaning of the generalities in the statute.16 A striking example of this is the extensive power vested in railroad and other public utility commissions.17 The legislature decrees that only reasonable rates shall be allowed and then delegates to these administrative agencies the function of determining what rates are reasonable. This is the situation in the instant case. The legislature has decreed that there shall be a sufficient number of traffic officers to carry out the act. To the administrative agency, the chief of the vehicle department, is delegated the duty of determining the exact meaning of the phrase "a sufficient number of traffic officers". If the determination of the reasonableness of rates in the one instance is considered a mere administrative act, it is submitted that the determination of the number of officers necessary to carry out the vehicle act is equally so.

Furthermore, the result reached in the instant case is an eminently desirable one. While the theory of the separation of the powers of government, with its correlative inhibition upon the delegation of legislative functions, is fundamentally a sound one, a too rigid adherence to it is incompatible with the needs of modern society. The ever increasing complexity of society has rendered it practically impossible for the legislature to provide in detail for all the manifold activities calling for governmental regulation. For instance, to require the legislature to decide exactly how many traffic officers are needed in each county is to carry a basically sound rule to extreme and impracticable limits. Large discretionary powers must, of necessity, be vested in administrative agencies, and, so long as the discretion is not arbitrary but is subject to superior control, there is no serious danger of the tyranny sought to be avoided by Montesquieu in his gospel of the separation of the powers of government. W. M. G.

VENDOR AND PURCHASER: TIME OF THE ESSENCE: WHAT CONDUCT ON THE Part of a VENDOR AMOUNTS TO A WAIVER OF A PROVISION MAKING TIME OF THE ESSENCE OF THE CONTRACT-What acts on the part of a vendor under an installment contract for the

of creating an office and the power of appointing to an office already created. It seems to be undeniable that the court in that case thought that such broad language as the type considered in the instant case was clearly an attempt to confer the power of creating offices.

162 Willoughby on the Constitution, $775; Burdick, The Law of the American Constitution, §60; 12 C. J. 844-847, and cases therein cited.

17 I. C. C. v. Illinois Central R. R. (1910) 215 U. S. 452, 54 L. Ed. 280, 30 Sup. Ct. Rep. 155; I. C. C. v. Chicago R. I. & P. Ry. Co. (1910) 218 U. S. 88, 54 L. Ed. 946, 30 Sup. Ct. Rep. 651.

sale of real property will constitute a course of conduct from which can be drawn the inference that the vendor has waived a provision in the contract making time of the essence? In California the rule is settled that where, in such a contract, the vendee defaults, the vendor is entitled to retain the payments made to him under the contract. But the courts have sought a means of alleviating this harsh rule of forfeiture, and, as a result, there has sprung up a line of cases represented by Boone v. Templeman' which preclude the vendor's right to insist upon strict performance of the terms of the agreement where his conduct shows an intention not to rely upon the condition precedent. The effect of these decisions is that, although provisions making time of the essence are strictly enforced in California, practically the result is much the same as in jurisdictions which take the view that time cannot be made strictly of the essence. But the difficulty with this state of the law is that there must always be cases where it is doubtful whether or not the vendor has done enough to come within the contemplation of the "waiver"

cases.

In the case of Clifford v. Fleshman the plaintiffs and defendant's grantor entered into an installment contract for the sale and purchase of real property. It was specifically provided in the contract that time was to be of the essence and that "in the event of a failure on the part of the buyer to keep or perform any of the terms, conditions or covenants to be performed by the buyer, the sellers shall, at their option, cancel and terminate the agreement and the sellers shall be relieved of all obligation in law and in equity to convey the premises and the money theretofor paid shall be kept and retained by the sellers. . ." The vendees failed to make several

1 Glock v. Howard & Wilson Colony Co. (1898) 123 Cal. 1, 55 Pac. 713, 69 Am. St. Rep. 17, 43 L. R. A. 199; Odd Fellows' Savings Bank v. Brander (1899) 124 Cal. 255, 56 Pac. 1109; Oursler v. Thatcher (1908) 152 Cal. 739, 93 Pac. 1007; Skookum Oil Co. v. Thomas (1912) 162 Cal. 539, 123 Pac. 363; Smith v. Post (1914) 167 Cal. 69, 138 Pac. 705; Cross v. Mayo (1914) 167 Cal. 594, 140 Pac. 283; Schwerin Estate Realty Co. v. Slye (1916) 173 Cal. 170, 159 Pac. 420; Fresno Irrigated Farms Co. v. Canupis (1918) 39 Cal. App. 184, 178 Pac. 300; Heden v. Point Reyes Land Co. (1921) 185 Cal. 121, 196 Pac. 44; Tomboy Gold etc. Co. v. Marks (1921) 185 Cal. 336, 197 Pac. 94; Brown v. Chowchilla Land Co. (1922) 59 Cal. App. 164, 210 Pac. 424; 8 California Law Review, 60; 11 California Law Review, 286.

2 (1910) 158 Cal. 290, 110 Pac. 947, 139 Am. St. Rep. 126.

8 Stevinson, Inc. v. Joy (1912) 164 Cal. 279, 285, 128 Pac. 751; Myers v. Williams (1916) 173 Cal. 301, 159 Pac. 982; Butte Creek etc. Co. v. Olney (1916) 173 Cal. 697, 708, 161 Pac. 260; Hermosa Beach Land and Water Co. v. Law Credit Co. (1917) 175 Cal. 493, 495, 166 Pac. 22; Andrews v. Karl (1919) 42 Cal. App. 513, 183 Pac. 838; Lemle v. Barry (1919) 181 Cal. 1, 183 Pac. 150, 181 Cal. 6, 183 Pac. 148; Newell v. E. B. & A. L. Stone Co. (1919) 181 Cal. 385, 184 Pac. 659, 9 A. L. R. 993; Hoppin v. Munsey (1921) 185 Cal. 678, 688, 198 Pac. 398; Kerr v. Reed (1921) 187 Cal. 409, 202 Pac. 142; 1 California Law Review, 300; 8 California Law Review, 62; 11 California Law Review, 286; see also Brown v. Chowchilla Land Co., supra, n. 1, where the parties agreed to waive the effect of conduct which would otherwise amount to a waiver of the forfeiture.

* (February 23, 1924) 43 Cal. App. Dec. 485, 225 Pac. 45. 5 43 Cal. App. Dec. 485, 487.

payments, whereupon the vendors advised them that they elected to cancel and terminate their agreement because of nonperformance on the part of the buyers and started a suit to have the contract declared forfeited. This case was settled by the vendees paying to the vendors the whole amount then due under the contract, including seven overdue installments. This was paid in a lump sum. Subsequently another monthly installment became due and unpaid and the vendors sued to quiet title to the property. The vendees insisted that the provision in the contract making time of the essence was waived by the vendors by virtue of their having accepted payment of the overdue installments, but the court held that the single acceptance by the vendors of payment of the overdue installments in settlement of the prior action did not constitute a course of conduct which would justify it in holding that the stipulation in the contract making time essential had been waived by the vendors. At first blush this appears to be a departure from the result reached in prior cases involving the acceptance by vendors of overdue payments under such contracts. Where there is a strict enforcement of forfeiture the courts usually apply the doctrines of waiver loosely. But upon examination of the authorities in this state the result reached in the instant case is shown not to be anomalous, but, rather, in accord with the rules laid down in the "waiver" cases."

In situations similar to that in the instant case it admits of no doubt that the acceptance of overdue installments by a vendor constitutes a waiver of the provision making time of the essence as to all breaches which have occurred at or prior to the time such payments were actually made.8 But does the vendor's conduct in accepting late payments act as a waiver of the provision as to breaches occurring subsequent to the actual acceptance by the vendor of the payments? The inference that the vendor has waived his right to insist upon strict performance of the agreement in futuro will be drawn where the entire course of business between the parties has been inconsistent with an intention in the vendor to insist upon strict performance. But even in such a case, where time has ceased to be essential because of the vendor's conduct amounting to a waiver of the condition, he can again make it essential and insist upon strict performance if he chooses to assert his right by giving proper notice and demand.10 If such notice and demand is not given a forfeiture cannot be declared and where the vendor allows the total purchase price to become due the tender of a deed to the property becomes a condition precedent to declaring

See 11 California Law Review, 286.

7 Supra, n. 3.

8 Boone v. Templeman, supra, n. 2; Hoppin v. Munsey, supra, n. 3; Beck v. Swank (1921) 55 Cal. App. 552, 203 Pac. 1010.

9 Boone v. Templeman, supra, n. 2; 11 California Law Review, 286; see also cases cited supra, n. 3.

10 Beck v. Swank, supra, n. 8; and cases cited supra, n. 3.

the vendee in default.11 But where no such course of conduct between the parties is shown, acceptance by the vendor of past due payments may waive all past defaults in performance but it does not alter the terms of the contract as to the future.12 As stated by Sugden (Lord St. Leonards), "Although time be made of the essence of the contract, yet the condition may be waived, just as in an ordinary case; but if the purchase money is to be paid by installments, each breach in nonpayment is a new breach of the agreement, and gives to the seller a right to rescind the contract, but that right should be asserted the moment the breach occurs.'

Returning for a moment to the facts of the instant case, we find no course of conduct within the contemplation of Boone v. Templeman1 and like cases, but only an acceptance of all moneys due on one particular occasion. The conduct of the vendors showed an intention to insist upon strict adherence to the terms of the agreement. When only two installments had become overdue the sellers notified the vendees that they would insist upon prompt payment and, when a third installment remained unpaid, suit was immediately started by the vendors to have the contract declared forfeited. While this suit was pending four more payments became overdue and the difficulty was ultimately settled by the vendees paying the amount due and the vendors dismissing the action. After such prompt action by the vendors it is reasonable to suppose that the vendees would feel that the sellers intended to insist upon prompt payment and that if the contract was again breached they would insist upon a forfeiture. The fact that the vendors accepted the late payments in a lump sum does not put them in the position of a vendor who has accepted a number of overdue installments at different times and thereby shown by his conduct that he does not intend to insist upon a strict performance of the agreement. The cases which allow a vendor's right of forfeiture to be restored after waiver by definite notice of an intention to demand prompt payments1 do not specify that such notice must be given in any particular manner. It would seem that the prompt instigation of the first suit in the instant case after only three installments had become due was sufficient notice to these vendees that the vendors demanded strict performance. The better view would seem to be that the only conduct on the part of a vendor which will constitute a waiver of his right to declare a forfeiture as to future breaches is that which clearly shows an intention not to rely upon the provision which makes time of the essence and which, if the provision were not declared waived, would mislead the vendee in determining whether or not his vendor intended to demand strict adherence to the terms of their agreement. W.V.C.

11 Boone v. Templeman, supra, n. 2; Kerr v. Reed, supra, n. 3.

12 Hoppin v. Munsey, supra, n. 3; Beck v. Swank, supra, n. 8. 18 Sugden on Vendors (14th ed.) p. 417.

14 Supra, n. 2.

15 Supra, n. 10.