R
DEAR BERTRAM COX,
2
OPINION OF LAW OFFICERS,
June 12, 1901.
I HAVE received your letter as to the New South Wales Agreement with the Eastern Extension Telegraph Company.
The following are the points that occur to me :--
1. If it was intended that any monopoly should be conferred on the Extension Company nothing would have been simpler than to insert a clause to this effect. The absence of such a clause is the strongest argument against the existence of the right suggested.
2. As regards "routed" telegrams, they must of course be sent by the route designated, but unless the tariff is not higher than that of competing lines there will probably be very few telegrams "routed" by the Extension Company.
3. As regards Government messages, clause 9 is, as you observe, decisive against the idea of any implied contract for a monopoly, as the provision for reduction would in that case be unnecessary and meaningless.
4. No distinction is made by clause 9 as between Government telegrams and any others. It follows that the Company were to compete for "non-routal" messages by reducing their tariff if they thought fit: indeed, unless they did so there would be no to go by any cheaper "non-routed" messages, as all messages would be "routed competing line unless in some very special cases.
5. I attach no importance to the second recital and the Agreement. It merely says that the traffic in question is to be transmitted in the terms of this Agreement, and this remits us to the Agreement itself to find out what these terms are.
6. Clause 16 `seems to me to have nothing to do with the question of competition between the Extension Company and the Pacific or any other competing line.
The case is one which has given me a good deal of trouble, because I fail to see any Coleridge's canon is a sound one, real ground at all for the Canadian contention. unless you understand a man's ignorance presume yourself ignorant of his under- standing; and but for this I should not have taken so much pains over the case.
On
the whole it seems to me clear (1) that the Agreement contains no clause conferring the monopoly, and (2) that its clauses, so far from implying the existence of such a monopoly, exclude all idea of it.
I concur.
Yours sincerely,
R. B. FINLAY.
EDWARD CARSON.
21005/
No. 86*.
(TRANSVAAL.)
OPINION OF THE LAW OFFICERS, MR. SUTTON AND MR. PARKER. Pretoria and Pietersburg Railway Company.
Royal Courts of Justice,
18th June, 1901.
We are of opinion that the Crown, as successor to the Government of the South African Republic, is, by virtue of the prerogative, entitled to the shares in the Pretoria and Pietersburg Railway Company, formerly belonging to, and still registered in, the name of the Government of the South African Republic, which has now ceased to exist.
It will, we think, be advisable, as soon as may be, to procure these shares to be registered in the name of a nominee or nominees of the Crown who can exercise the voting powers in respect thereof.
For this purpose we think the Crown should, by Warrant under the Sign Manual (Lambert v. Taylor, 4 B. & C. 138), transfer the shares to a nominee or nominees selected for that purpose, and tender the transfer properly stamped to the Company for registration under the transfer provisions of the Articles. If the Company will not waive the production of the share certificates without being indemnified some indemnity should be given.
If registration be refused we think the Court should be moved to rectify the Register under Section 35 of the Companies Act, 1862. On such a motion the Court would, on a Certificate from the Foreign Office, take judicial cognizance of the annexation of the territory and the dissolution of the former Government of the South African Republic. We further think that, pending such a motion, it would be possible, if necessary, to restrain the Company from holding any general meeting.
As soon as the transfer is executed an ex parte application should be made to dissolve the existing injunction so far as may be necessary to permit the Company to proceed with the registration thereof, but not further or otherwise.
Meanwhile it would be as well to write to the Company stating that, in the opinion
of the Secretary of State, the time has arrived for formally recognising His Majesty's title by registration of the shares in the name of his nominee, and that the necessary papers will shortly be laid before them for that purpose.
If possible the transfer should be lodged for registration before the next Board Meeting, which, we understand, is fixed for Wednesday in next week. If this be done the registration should be completed before any meeting which may be summoned, pursuant to the requisition of the shareholders.
R. B. FINLAY. EDWARD CARSON, HENRY SUTTON. · R. J. PARKER.
10037-25-10/1901 Wt 352
D & 8
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PUBLIC RECORD OFFICE
Reference :-
PC.O. 885
15 PUBLIC RECORD OFFICE, LONDON
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