also X has the power to create contractual obligations of various kinds. Agency cases are likewise instructive. By the use of some metaphorical expression such as the Latin, qui facit per allum, facit per se, the true nature of agency relations is only too frequently obscured. The creation of an agency relation involves, inter alia, the grant of legal powers to the so-called agent, and the creation of correlative liabilities in the principal.[1] That is to say, one party P has the power to create agency powers in another party A,—for example, the power to convey X's property, the power to impose (so-called) contractual obligations on P, the power to discharge a debt, owing to P, the power to "receive" title to property so that it shall vest in P, and so forth. In passing, it may be well to observe that the term "authority," so frequently used in agency cases, is very ambiguous and slippery in its connotation. Properly employed in the present connection, the word seems to be an abstract or qualitative term corresponding to the concrete "authorization,"—the latter consisting of a particular group of operative facts taking place between the principal and the agent. All too often, however, the term in question is so used as to blend and confuse these operative facts with the
- ↑ For a leading case exhibiting the nature of agency powers, especially powers "coupled with an interest," see Hunt v. Rousmanier (1883), 8 Wheat., 173, 201.It is interesting to note that in the German Civil Code the provisions relating to agency are expressed in terms of powers,—e. g., sec. 168: "The expiration of the power is determined by the legal relations upon which the giving of the power is founded. The power is also revocable in the event of the continuance of the legal relation, unless something different results from the latter."Incidentally, it may be noticed also, that as a matter of English usage, the term "power of attorney" has, by association of ideas, come to be used to designate the mere operative instrument creating the powers of an agent.
to sell and dispose of such articles as well as to use and enjoy it"); Low v. Rees Printing Co. (1894), 41 Neb., 127, 146 (Ryan, C.: "Property, in its broad sense, is not the physical thing which may be the subject of ownership, but is the right of dominion, possession, and power of disposition which may be acquired over it.").
Since the power of alienation is frequently one of the fundamental elements of a complex legal interest (or property aggregate), it is obvious that a statute extinguishing such power may, in a given case be unconstitutional as depriving the owner of property without due process of law. See the cases just cited.