CO885-(15-16) — Page 379

PUBLIC RECORD OFFICE

Reference :-

TLC.O.885

16 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

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that the right of pre-emption of the Colony would attach to the property of the New York, Newfoundland, and London Company after an amalgamation with the Anglo-American Company. It does not appear clear, however, that their opinion applied to cables never laid by the New York, Newfoundland, and London Company, but by the Anglo-American Company in the first instance. The high authority of Mr. John Horatio Lloyd appears to have been cited at the time for the counter pro- position that if the Newfoundland Company were consolidated with and merged into the Anglo-American Company, the Newfoundland Government would lose the right of pre-emption conferred by the Act of 1854.

Copies of the opinions referred to, so far as they have been communicated by the Newfoundland Government, are annexed.

It appears from a Colonial Act of 1898, which saves the rights conferred upon the Newfoundland Company by the Act of 1854, that those rights were, in 1898, vested in and held by the Anglo-American Telegraph Company. At what date that Company acquired these rights there is at present nothing to show.

The Government of Newfoundland recently took the opinion of Mr. Haldane and Mr. Coles as to the rights of the Government in relation to the purchase of the property of the Anglo-American Company. The opinion of the learned Counsel, a copy of which is forwarded with this case, was to the effect that the Newfoundland Government could exercise its right of pre-emption on the terms contained in Section 15 of the Act of 1854 over all the property of the Anglo-American Company, whether situate in Newfoundland or elsewhere, with the exception of the lands granted to the Company in Sections 10 and 22 of the Act of 1854 and the other pro- perty excepted by Section 15 of that Act. They further expressed the opinion that the terms of purchase would be what are generally known as tramway terms.

The Government of Newfoundland have been asked to furnish a copy of the case upon which this opinion was given, and from their reply it would appear that nothing but the Colonial Acts of 1854 and 1857 were placed before the learned Counsel, together with the following question:-"What will be the position of the Anglo-American Telegraph Company, as representing the New York, Newfoundland, and London Telegraph Company, Limited, after the 15th of April, 1904?”

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In the spring of last year a Colonial Act was passed conferring on the New- erecting and maintaining telegraph lines foundland Government the monopoly of and of transmitting telegrams and other communications by telegraph within the Colony and performing all the incidental services of receiving, collecting and deliver- ing such telegrams or communications," except as provided by the Act or by statutory regulations (Section 4).

Section 13 of the same Act authorised the Postmaster-General, with the approval of the Governor in Council, to enter into arrangements with the Anglo-American Telegraph Company for taking over the "land lines" and property of the Company, either altogether or in part for the purposes of the Department, or into any arrange- ment whatsoever for the purchase, management and operating of such lines and the extinction of their rights by charter or otherwise or any part thereof as might No compulsory power of acquisition was seem desirable in the public interest. conferred, and by Section-16 of the Act it was provided that "nothing in the Act contained shall affect any rights which the said Anglo-American Company has under its Charter or any Act of the Legislature."

It does not appear, therefore, that the Newfoundland Government has acquired any rights of compulsory purchase as against the Anglo-American Telegraph Com- pany. Whatever rights it may possess seem to be founded upon the power given to it in 1854 to purchase compulsorily the property of the New York, Newfoundland, and London Company.

In this state of facts there seems to be considerable difficulty in arriving at the conclusion embodied in the opinion of Mr. Haldane and Mr. Coles.

In the first place, it has already been pointed out that it is not quite clear that the original right of pre-emption extended to any trans-Atlantic cable laid by the Newfoundland Company.

Secondly, assuming that it did so extend, the Newfoundland Company was never consolidated with the English Atlantic Company, which laid the first cable to America, but was unable to work that cable or to prosecute its enterprise to a successful issue. It appears clear that the Newfoundland Company and the Atlantic Company remained distinct throughout the whole period of the existence of the Atlantic Company, and equally clear that the Newfoundland Company, as such,

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never owned any trans-Atlantic cable which could become the subject of the right of pre-emption conferred by the Colonial Act of 1854.

Thirdly, it is not clear that the cable of the Atlantic Company was, during the time it belonged to the Atlantic Company, subject to the right of pre-emption con- ferred by the Act of 1854. Attention has already been called to the fact, that, although the Colonial Act of 1857 provided that any cable landed by the Atlantic Company should be deemed in law to be an extension of the telegraph line of the Newfoundland Company to Europe, the saving of the right of pre-emption in the same Act is confined to cables "in Newfoundland and between Newfoundland and the Continent of America."

Fourthly, even if the right of pre-emption attached to the Atlantic Company's cable while that Company was in existence, it does not appear to attach to any cables of the Anglo-American Company. The right of pre-emption arose only under an Act of Parliament of the Colonial legislature, and the amalgamation of the Atlantic and the Anglo-American Companies in 1870 expressly excepted a provision of the Railway Clauses Act, 1863, which applies the special Acts of the dissolved Company to the amalgamated Company.

The Anglo-American Company has, since the Amalgamation Act of 1870, laid four additional cables between Europe and Newfoundland, and a cable between England and France. It also possesses a series of cables connecting Newfoundland with Canada and the United States-by one route through French territory--doubt- less purchased from the Newfoundland Company. It is an undertaking with a large capital and a large business, having its head offices in the United Kingdom.

The Law Officers are requested to advise whether, in their opinion, the Govern- ment of Newfoundland has the right to purchase compulsorily the undertaking of the Anglo-American Telegraph Company.

OPINION.

In our opinion the Government of Newfoundland has no such right. The fourth section of the Colonial Act of 1857 expressly enacts that the rights of the New- foundland Government (including apparently the right of pre-emption) shall be in force with respect to new lines in the island and between the island and America but does not affect the trans-Atlantic cable. On this ground, apart from other con- siderations, we think the answer to the question submitted must be in the negative.

R. B. FINLAY. EDWARD CARSON.

Law Officers' Department,

March 13, 1905.

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