Page:The Green Bag (1889–1914), Volume 18.pdf/53

 34

THE GREEN BAG

CONSTITUTIONAL LAW (Rate Regula tion). "The Question of Rates," by Otto Gresham, Chicago Law Journal (V. xxii, p. 481). CONSTITUTIONAL LAW. (Treaties — Agreements). James F. Barnett concludes in the December Yale Law Journal (V. xv, p. 63) an article on " International Agree ments Without the Advice and Consent of the Senate." He finds " that an arrangement with a foreign power, whether made by a State with the consent of Congress or by the President with or without that consent, is not a contract included under the term treaty, as used in the Federal constitution." Con gressional senction is always necessary to the validity of agreements made by a State. The value of the distinction between obtaining the sanction of Congress and obtaining the advice and consent of the Senate is that the former is obtained by a bare majority in both houses whereas the ratification of treaties requires a two-thirds vote of the Senate. He further finds that an agreement, if made by a State, comes within the former category, if it relates to local or temporary matters, and especially if it relates to property rights rather than to political objects. " That the President, under an act or resolution of Con gress and by virtue of his duty to see that the laws are faithfully executed, may make agreements to carry such legislation into effect." This applies to reciprocal trade trea ties, reciprocal protection of trade-marks, and since 1872, to postal conventions. "The President may enter into an agree ment, where it involves (i) the exercise of the military power," as by peace protocol and arrangements involving the disposition of military forces in whatever localities the Presi dent may select, as an arrangement for the reciprocal crossing of the frontier by the troops of the United States and Mexico in pursuit of marauding Indians, (2) "or an agreement which regulates temporarily a mat ter to be ultimately adjusted by formal treaty " as modi vivendi and other provisional agreements, (3) or " relates to private claims against foreign governments. ' ' These latter con cern the private individual intimately, and if satisfactory to him are of no further interest to others. Since 1870, eighteen agreements

of this nature have been entered into by the President without reference to the Senate. "The President by virtue of a general arbi tration treaty specifically enumerating certain ' causes ' to be referred to arbitration may lawfully make the agreements necessary for that purpose without submitting the same to the Senate for its approval," which is not the case where the general arbitration treaty pro vides merely for the arbitration of " differences of a legal nature or relating to the interpreta tion of treaties." CORPORATIONS. Annual Report of the Commissioner of Corporations to the Secretary of Commerce and Labor. Government Print ing Office, Washington, 1905. CORPORATIONS (Promoters' Contracts). In the December Harvard Law Review (V. xix, p. 97) H. S. Richards discusses the liability of corporations on contracts made by pro moters. It is well settled that an agreement entered into between a third person and a promoter prior to the existence of the corpora tion does not bind it though made on account of the corporation and with the expectation that it will be liable. But the corporation may become liable on terms substantially the same as those embodied in the agreement antedating the corporate existence. He then refers to certain classes of cases in which cor porate liability exists, viz: where statutes make the corporation liable for certain ex penses attending the organization and pro motion of the company, where the promoter contracts with a third person, and the corpora tion becomes a party to it by novation, there the corporation obtains rights under a contract by assignment. A class of cases also exists in which the corporation is liable on a theory that a trust fund has been created by the corporation for the benefit of third persons as a result of an agreement between the pro moter and the corporation. Aside from these exceptional cases the question is, how can a corporation be held liable upon an agreement entered into between a promoter and a third person? It is usually said to become liable by ratification or adop tion, but ratification is possible only where the contract purports to be made for an existing principal. Furthermore, the pro moter is not properly an agent. In England