Macduff & Company v Robertson
| Jurisdiction | Scotland |
| Judgment Date | 07 December 1945 |
| Date | 07 December 1945 |
| Docket Number | No. 8. |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-Clerk. Lord Mackay. Lord Sorn.
Statutory Offences—Exhibiting unlicensed advertising sign—Exceptions—Advertising sign exhibited on railway embankment and visible from street—Whether sign exhibited "upon any portion of the surface" of a "wall or other property" of a railway company "fronting any street"—Glasgow Streets Sewers and Buildings Consolidation Order Confirmation Act, 1937 (1 Edw. VIII and 1 Geo. VI, cap. xliii), sec. 180 (2) and (4) (e).
The Glasgow Streets Sewers and Buildings Consolidation Order Confirmation Act, 1937, enacts, by subsec. (2) of sec. 180, that no person shall exhibit any advertising sign without a licence from the Corporation, and by subset. (4) that a licence shall not be necessary for, inter alia, "(e) an advertising sign exhibited within any railway station or upon any wall or other property of a railway company except an advertising sign exhibited upon any portion of the surface of such wall or property fronting any street."
The railway on an embankment which ran at right angles to a street in Glasgow was carried over the street by a bridge. On the sloping side of the embankment a billposting company erected an advertising sign, consisting of a large hoarding displaying advertisements, the sign being so placed and at such an angle to the embankment as to be in full view of persons on the street. No licence was obtained from the Corporation for the sign, and the company were convicted of having exhibited an unlicensed advertising sign.
Held (1) that the word "property" in sec. 180 (4) included land and was not restricted on the principle of ejusdem generis to structures similar to walls, and accordingly that the sign fell within the general exemption; (2) (diss. Lord Sorn) that it did not fall within the exception to that exemption, in respect that the portion of the surface of the embankment on which the sign was erected did not front the street and conviction accordinglyquashed.
Slaughter & Co. v. Macpherson, 1929 J. C. 123,commented on.
Macduff & Company, Limited, Glasgow, were charged in the Police Court at Glasgow on a complaint at the instance of James Robertson, writer, Glasgow, interim Procurator-fiscal, which set forth "that you did on 1st June 1945 exhibit two advertising signs on land in Glasgow, namely, (1) an advertising sign situated upon land, the property of the London, Midland and Scottish Railway Company and fronting Bilsland Drive, Glasgow, southeast of the railway bridge there, and (2) an advertising sign situated upon land, the property of the said railway company and fronting Balmore Road, Glasgow, north-west of the railway bridge there, without having obtained a licence for such advertising signs from the Corporation of Glasgow in terms of the Act aftermentioned; Contrary to the Glasgow Streets Sewers and Buildings Consolidation Order, 1937, sections 1801 and 232; whereby you are liable, in respect of each offence, to a penalty. …"
On 30th July 1945 the Stipendiary Magistrate found the accused guilty as libelled, and at their request, stated a case for appeal to the High Court of Justiciary.
The case set forth that a joint minute of admissions with relative plans and photographs was lodged by the parties, and that no material evidence was further adduced by either party. The facts admitted by the parties in the joint minute of admissions were as follows:—"(1) That the appellants did on 1st June 1945 exhibit two advertising signs situated on lands in Glasgow which are the property of the London, Midland and Scottish Railway Company. (2) That the said advertising signs, parts of which exceed 12 feet above the ground, are exhibited on the embankment of the London, Midland and Scottish Railway Company, which runs approximately at right angles to Bilsland Drive and Balmore Road, Glasgow, respectively. The first sign is situated south-east of the railway bridge crossing Bilsland Drive, and the second sign is situated north-west of the railway bridge crossing Balmore Road. Both signs are so placed as to be clearly visible by members of the public in Bilsland Drive and Balmore Road respectively. (3) That, in the case of the first sign complained of, the portion of the property of the London, Midland and Scottish Railway Company which abuts upon Bilsland Drive is (i) the abutment of the bridge carrying the railway line over Bilsland Drive, and (ii) a fence measuring approximately 33 feet in length, which separates the land of the railway company from the road; and in the case of the second sign complained of the only portion of the property of the railway company which abuts upon Balmore Road is (i) the abutment of the bridge carrying the railway line over Balmore Road, and (ii) a fence measuring approximately 28 feet in length, which separates the land of the railway company from the road. (4) That the two plans marked A and B lodged by the appellants, with measurements of the two hoardings complained of, are correct. (5) That photograph No. 1 is a correct photograph of the Bilsland Drive sign, and photograph No. 2 is a correct photograph of the Balmore Road sign, and that the Bilsland Drive sign is similarly placed, in relation to the street, to the Balmore Road sign. (6) That no licence has been obtained for either of the signs from the Corporation of Glasgow, in terms of the Glasgow Streets Sewers and Buildings Consolidation Order, 1937, section 180."
The grounds of the magistrate's decision were stated as follows:—"To succeed the respondent required to prove that the signs
referred to in the complaint were exhibited upon the portion of the surface of the railway company's wall or property fronting the streets. Parties were agreed that the word “property” used in subsection 4 (e) of section 180 of the Glasgow Streets Sewers and Buildings Consolidation. Order, 1937, was not intended to be readejusdem generis with the word “wall”; that it should be given its full and proper meaning; and that it included “land.” In the interpretation section of the Act—section 5—“advertising sign” is found to include any hoarding, &c., employed wholly or in part for advertising purposes. The advertising signs in question are not flat on the surface of the land, but, when it is found that “property” includes “land” and “advertising sign” includes “hoarding,” it appeared to me to follow that a hoarding erected on land was an advertising sign exhibited on the surface of that land or property. The real question at issue appeared to me to be the interpretation of the last three words of subsection (4) (e), videlicet:—“fronting any street.” In my view, the adjective “fronting” qualifies the word “property” and this means in the present case “land.” It was contended on behalf of the appellants that the advertising signs were erected upon a railway embankment which admittedly runs approximately at right angles to the streets, and that therefore the embankments on which the Advertising signs are now exhibited did not “front the street.” Authority is found inBedfordshire Justices v. Bedford Improvement CommissionersUNK, (1852) 21 L. J. M. C. 224, for the proposition that “fronting” is not confined to premises which have their front (as opposed to their side or back) turned in a particular direction. This proposition appeared to me to be even stronger in the case of land, since, apart from variations in the level of the ground. such as embankments, there can be no front or back to it. It appeared to me in the debate that some attempt was also made on behalf of the appellants to suggest that the advertising, signs themselves did not front the street and that accordingly no offence had been committed. In my view, however, it is immaterial whether the advertising signs front the street or not, if the land on which they are exhibited fronts the street. Nor was I impressed by this argument when I referred to the photograph lodged in the case—production No. 5. It was agreed by the counsel for the appellants that the advertising, signs exhibited underneath the bridge, as shown in the photograph, fronted the street and that in consequence, subject to any exemption in any of the other subsections, a licence would be necessary. The advertising sign in question, however, is visible to members of the public on the street for a far greater distance than those exhibited underneath the bridge. In my view, it would be a misuse of words to say that the particular advertising signs referred to in the complaint did not front the street."The question of law for the opinion of the Court was:—"On the admitted facts was I entitled to find the appellants guilty as libelled?"
The case was heard before the High Court of Justiciary on 22nd and 23rd November 1945.
At advising on 7th December 1945,—
LORD JUSTICE-CLERK (Cooper).—Agreed facts have been presented, in this test case so as to describe the situation which arises when a railway is carried on embankments and by an overbridge above a street, more or less at right angles, and when advertisements are displayed on large hoardings erected on the sides of the embankments near the bridge, so placed as to face up or down the street and therefore to be visible to persons on the street approaching the bridge. Do such "advertising signs" require to be licensed under the Glasgow local Act?
"Advertising sign" is defined as meaning both the hoarding and the matter displayed on it. The operative section begins by imposing a general requirement fenced by penal consequences that no person shall "erect, exhibit, fix, retain or maintain any advertising sign in, on, over or above any land, building or street" without a licence from the Corporation, the determining consideration in licensing being declared to be the amenities of the locality. Certain exceptions are then made to the generality of this prohibition, the relevant exception (which contains an exception within the exception) being as...
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