Judgment:
Lord Chancellor (Loreburn)—With the utmost respect for the Court of Appeal I am unable to accept their view. This appeal affords an admirable illustration of the danger to which great interests in this country are exposed by the slovenly manner in which even public Acts of Parliament are expressed. It is still worse with private Acts. In the present case the Government bought the telegraphs and acquired a monopoly of telegraphic, which includes telephonic, communication about forty years ago for a great sum of money; and to-day your Lordships have to consider how far that monopoly extends, not in regard to trivial or frivolous invasions, but in regard to claims so far-reaching that if admitted they would go a considerable way towards destroying the value of the monopoly itself, and so serious as to have been admitted by the Court of Appeal. Speaking generally, not with complete precision, the National Telephone Company allege that the statutory monopoly of the Postmaster-General is limited by section 5 of the Telegraph Act 1869 so that any person (corporate or individual) may without licence use his own private wire to communicate with any other persons, however numerous, provided that the message relates to his own business, and is transmitted without charge. On the other hand, the Postmaster-General says that such a private wire can only be used by its owner to transmit messages to and from himself and his own servants and agents, except for occasional gratuitous use by others of an exceptional kind. The point is conveniently, though roughly, expressed in the question, May a person use his private wire to send “A” to “A” messages (that is, from himself to himself), or can he also use it to send “A” to “B” messages? Which of these views is sound must depend upon the true meaning of two paragraphs in section 5 of the Act of 1869 which undoubtedly create exceptions to the monopoly granted by the preceding section. I propose to consider each paragraph separately. The first paragraph excepts from the monopoly “Telegrams in respect of the transmission of which no charge is made, transmitted by a telegraph maintained or used solely for private use, and relating to the business or private affairs of the owner thereof.” Here are laid down definite conditions under which alone this exception applies. No charge must be made by the owner of the “telegraph” for transmitting a message. The message must relate to his own business, though, of course, it may also relate to the business of other people. And, finally, the telegraph must be maintained or used solely for the owner's private use. The singular is employed. It is one owner, not several—one personality, whether corporate or not. I think that this means that the owner alone can use the telegraph. It cannot be said to be used solely for his private use if the wire is at the owner's office at one end, and at the other end, or at a multitude of places throughout its length, it is at the offices of other people also, who are not his agents or servants. In that case it is used not solely for the owner's private use but also for that of others. The main argument of the respondents was, that if that be the sound construction, there was no need for saying that no charge should be made, for no one would charge himself. I cannot appreciate this argument. A message may be sent by A to his own agent relating to his own business, and it may also relate to B's business, and B may be willing to pay something for getting the message sent and the answer communicated to him. That is the reason for prohibiting any charge from being made. I come now to the second paragraph, which excepts “Telegrams transmitted by a telegraph maintained for the private use of a corporation, company, or person, and in respect of which, or of the collection, receipt, and transmission or delivery of which, no money or valuable consideration shall be or promised to be made or given.” This paragraph is differently worded because it deals with a different case. Here there is no condition that the message must relate to the owner's business. Here also it is not imperative that the “telegraph” shall be “maintained or used” solely for the owner's private use. It is enough that it is maintained for the private use of the corporation, company, or person, and no charge made. It seems to me that the design was to allow a third person to use the telegraph and to use it for business in which the corporation, company, or person had no concern, provided that the message was sent gratuitously and that the telegraph was maintained for the private use of the corporation, company, or person. In other words, if the real purpose of maintaining the telegraph was for that private use, outside persons might be allowed to use it for their own affairs, always on terms of no charge being made. The Attorney-General described this as a casual and gratuitous use. I think that he is right. If the practice were frequent, then the privilege would be destroyed, for then it might truly be said that the wire was not maintained for the private use of the corporation, company, or person only, but for the use of other persons also. The language of both paragraphs is clumsy, and the two are not mutually exclusive. But in substance the latter is a qualification of the earlier, intended to allow a certain degree of latitude. There may be an occasional invasion of the monopoly, but it must not be a practice. This concludes the case in favour of the appellant. I need not, therefore, deal with the Attorney-General's second contention, that under the agreement the National Telephone Company
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are bound to pay the disputed royalties, quite apart from the statute. In my opinion the agreement in this particular merely licenses what would without licence be prohibited by the statute. A point was made that the transmission of a signal, as described in the second schedule, does not amount to the transmission of a telegram within the Act of 1869. I think the point untenable in view of the definition clause.
Earl Of Halsbury—I entirely concur with the judgment of the Lord Chancellor and with the reasons on which it is founded.
Lords Macnaghten,
Collins, and
Gorell concurred.
