Scottish Court of Session Decisions

This was an appeal from a judgment of the Dean of Guild Court, Glasgow, upon a petition and application at the instance of George Neilson, writer, Glasgow, Procurator-Fiscal of the Dean of Guild Court of the Burgh of Glasgow for the public interest, against Douglas Boag & Company, advertising contractors, 27 Oswald Street, City, Glasgow.

The petitioner craved the Court to find that the respondents had been guilty, actors or art and part, of two Guild offences within the meaning of the Glasgow Police Acts 1866 to 1900, particularly the Glasgow Building Regulations Act 1900, sections 119, 137, and 138, in respect that the said respondents “(1) did on 30th January 1901, in Trongate, Glasgow, exhibit and maintain theatrical advertisements on a moveable structure upwards of 6 feet high used primarily as an advertising medium; and (2) did, date and place above libelled, exhibit and maintain advertisements of a stallion show on another moveable structure upwards of 6 feet high, used primarily as an advertising medium, without having obtained licences from the Corporation of the City of Glasgow therefor respectively;” and to find the said respondents liable in respect of each of the said two Guild offences to a penalty not exceeding £5.

The petitioner, inter alia, stated that one of the structures “was on the 30th day of January 1901, with a horse yoked thereto, under the charge of David Wilkie, 4 East John Street, Glasgow, driven along Trongate, Glasgow,” and that the second “was on said date, with a horse yoked thereto, under the charge of James Galstead, 114 Elmvale Street, Glasgow, driven along Trongate aforesaid,” and that these men were employed by the respondents. These averments were admitted.

The respondents pleaded, inter alia—“(2) The petitioner's statements are irrelevant and insufficient to support the prayer of the petition. (4) The vehicles in question not being moveable structures either under the Act in question or as matter of fact, the respondents are entitled to absolvitor with expenses. (5) Esto that the said vehicles are moveable structures, no licence is required for them in respect they do not exceed 12 feet in height at their highest point.”

On 2nd April 1901 the Dean of Guild ( Gourlay) issued the following interlocutor:—“Having considered the closed record, repels the second plea-in-law stated for the respondents; finds the averments in the petition relevant for probation; before further answer allows the parties a proof of their respective averments, and appoints the proof to proceed on a date to be afterwards fixed.”

Note.—“This is a petition and application brought by the procurator-fiscal against a firm of advertising contractors to have them found guilty of an infringement of section 119 of the Glasgow Building Regulations Act 1900. Section 119 provides (1) ‘No person shall erect, exhibit, fix, maintain, retain, or continue any advertisement … upon any ground, house, building, or structure, except on such sites, hoardings, or structures as the Corporation may license … Provided always that a licence shall not be necessary ( a) in respect of any hoarding or structure the highest part of which does not exceed 12 feet above the street where the same is situated in or upon any street or above the ground where it is situated elsewhere,’ or ( b) in respect of certain other cases; and sub-section (4) of section 119 provides—‘The word structure in this section shall include any moveable structure (except a board or boards personally carried not exceeding in size 4 feet by 2 1 2; feet), used primarily as an advertisement or an advertising medium.’ The respondents plead that the petitioner's statements are irrelevant and insufficient to support the prayer of the petition, and parties have been heard upon this plea. If the Dean of Guild correctly apprehended the argument of the respondents' agent, the argument was this. The words in parenthesis in subsection (4) are merely words of exception or relief, and cannot be taken to support or affect the rest of the sub-section, which is the enacting part of the sub-section; that the enactment of the sub-section is that moveable structures shall be included in the previous enactment imposing a penalty for using an advertising structure without a licence; that from the penal enactment there is excepted the case of a structure which does not exceed 12 feet above the street where the same is situated in or upon any street;

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that the moveable structure referred to in the petition is only averred to be upwards of 6 feet high, or at most about 12 feet high, and that the averments are therefore irrelevant. The Dean of Guild cannot adopt this construction of the statute. While the word ‘structure’ in section 119 is declared to include any moveable structure, it appears to the Dean of Guild that, from the words used in it, the exception ( a) in sub-section 1 was intended to cover hoardings or structures of the nature of hoardings. The exception is of any hoarding or structure the highest part of which does not exceed 12 feet above the street where the same is situated in or upon any street or above the ground where it is situated elsewhere. No doubt the moveable structure referred to on record must be in or upon some street or above the ground, but in the ordinary sense of the words it cannot be said to be situated in or upon any street. Further, if moveable structures which do not exceed 12 feet are not within the penal enactment, then the parenthetical clause of sub-section (4) must in effect be declared to be mere surplusage. Surplusage in Acts of Parliament is, of course, not unknown, but in the present case the Dean of Guild is not prepared to say in effect that the parenthetical clause referred to is of no point or purpose whatever. Sub-section (4) brings any moveable structure, except a board personally carried not exceeding 4 feet by 2 1 2; feet, within the enactment requiring structures to be licensed by the Corporation, and the Dean of Guild is therefore of opinion that the averments in the petition and application are relevant. The Dean of Guild understands that the question is going on appeal, and he has not therefore in the meantime fixed a diet for proof.”

Thereafter the parties adjusted the following joint-minute of admissions:—“The parties concur in stating that the respondents are proprietors of two advertising vehicles which are of the nature of an ordinary lorry upon four wheels, upon which as a foundation there is placed a canopy of wood with a sloping roof resembling a large dog-house. The canopy is separate from the lorry, and is placed upon it and fixed down. It is wholly constructed of wood, and is held together with iron bolts and screws attaching it to the body of the lorry. The canopy is removable. The canopy is hollow. On the dates libelled, vehicles of the form above described were used, as condescended on, by defenders. The highest point of the canopy above the ground did not exceed 12 feet. The vehicles in question were in use for advertisements on the 1st day of March 1900.”

On 11th June 1901 the Dean of Guild issued the following interlocutor:—“Having resumed consideration of this case, heard the complainer and the agent for the respondents, and considered the joint-minute of admissions by the parties—probation having been renounced—the Dean of Guild finds that the respondents did on 30th January 1901, in Trongate, Glasgow, use two advertising vehicles of the nature and dimensions stated in the said joint-minute, and upon each of these vehicles or part of these vehicles did exhibit and maintain advertisements as libelled: Finds that the said vehicles are moveable structures within the meaning of the ‘Glasgow Building Regulations Act 1900,’ section 119, and that the respondents had and have no licence from the Corporation of the City of Glasgow as provided for by the said ‘Glasgow Building Regulations Act 1900,’ section 119, for these vehicles or either of them: Therefore finds the respondents guilty of the two Guild offences libelled: Finds them liable in respect of each of the said two offences in a penalty of five shillings, to be recovered, paid, and applied as directed by the said Act: Finds the respondents liable to the complainer in expenses,” &c.

Note.—“The general question involved in this case is whether, since the passing of the Glasgow Building Regulations Act, certain vehicles or structures admittedly used for advertising purposes—and, as the Dean of Guild may remark, used in considerable numbers on the public streets of Glasgow—fall to be licensed by the Corporation. The parties have dispensed with a proof, and have lodged a joint-minute of admissions, from which and from the relative photograph a satisfactory notion of the vehicles or structures in question may be obtained.

By interlocutor dated 2nd April 1901 the Dean of Guild, for the reasons therein mentioned, repelled a plea taken by the respondents against the relevancy of the application and complaint. That interlocutor has not yet been brought under review, and the parties now ask the Dean of Guild to decide whether the particular vehicles referred to in the proceedings fall under the provisions of section 119 of the Glasgow Building Regulations Act of 1900. The Dean of Guild thinks it is clear that these vehicles or structures are exactly what is contemplated by that section; if they are not, the Dean of Guild cannot think what the words ‘moveable structure’ were meant to cover.

If the Dean of Guild is right in what he has decided by his interlocutor of 2nd April, and in the opinions just expressed, then it follows that a licence from the Corporation is required before vehicles or structures such as those in question can be used, and no licence having been obtained by the respondents, they have, by using the vehicles in question, been guilty of a Guild offence within the meaning of the Act, and the Dean of Guild has found accordingly and imposed a penalty.

The parties admit that the vehicles in question were in use for advertisement on 1st March 1900, and the respondents plead that they are entitled to use the vehicles in question for a period of five years after the passing of the said Act. The point was taken but not argued, and the Dean of Guild, on much the same line of reasoning as influenced him on the question of relevancy, is against the respondents on this point also.”

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The respondents appealed, and argued—Sub-section 4 of section 119 declared that the word “structure” in the section should include any moveable structure, but the vehicles here were not structures at all but merely lorries. If, however, it were held that they came within the definition of “structure,” then the definition applied to the whole section, and “structure” must be taken to have the same meaning in the proviso as elsewhere in the section. If that were so, the vehicles in question came under the proviso, because they did not exceed 12 feet in height, and consequently they did not require a licence. It was impossible to argue that because the words “situated in or upon a street” were used in the proviso therefore the word “structure” there used must be limited to meaning fixed structure, for the Corporation had no power to allow an advertising structure to be fixed in or upon a street. The word “situated” meant temporarily situated, and the object in using the words was merely to give a datum from which to measure the height.

Argued for the petitioner and respondent in the appeal—Sub-section 1 of section 119 gave the operative prohibition, and would have been incomplete had it not included moveable structures, and the vehicles in question clearly came under that description. The exception, however, to the prohibition did not require to include moveable structures, and clearly did not do so because of the word “situated.” That implied a fixed stance. It was not necessary to give a datum from which to measure the moveable structures, for in their case the hoarding itself was to be measured, as shown in the case of the provisions regarding sandwich men in sub-section 4.

At advising—