Scottish Court of Session Decisions

The Glasgow Police Act 1866 (29 and 30 Vict. c. 273), sec. 149, enacts that “Every person who is guilty of any of the following disorderly acts or omissions on any turnpike road, or in any public or private street, or court, or on the outside of any building adjoining the same, or in any common stair, shall, in respect thereof, be liable to a penalty not exceeding the respective amounts, or to imprisonment for a period not exceeding the respective periods hereinafter mentioned” … (Sub-section 28) “Every person who … affixes, or causes to be affixed, … without the consent of the proprietor and occupier, to any other building, or to any wall, fence, or hoarding, any bill or other notice … shall, in respect thereof, be liable to a penalty not exceeding forty shillings, or in default of payment to imprisonment for fourteen days.”

Section 131 of the said Act provides, inter alia, … “No proceeding or trial before the magistrate, and no order or sentence of the magistrate thereon, or the extract thereof, shall be … subject to suspension, or to any other form of review, unless in manner and on some one or more of the grounds hereinafter mentioned.” Section 132—“Any person who feels aggrieved by any order or sentence of the magistrate may within fourteen days after its date appeal to the Court of Justiciary at the next Circuit Court to be held at Glasgow, in the manner and under the rules, limitations, and conditions contained in the Act for Abolishing Heritable Jurisdictions (20 Geo. II. cap. 43), on the ground of corruption, malice, or oppression on the part of the magistrate, wilful deviation in point of form

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from the statutory enactments, incompetency or defect of jurisdiction, but on no other ground.”

John Kidger, designing himself as a “fancy letter writer,” was charged before the Police Court, Glasgow, with a contravention of the Glasgow Police Act 1866, sec. 149, sub-sec. 28, in so far as he did on the 19th day of October 1888 affix, or cause to be affixed, to the wall of a building or part of a building occupied by him in West Nile Street aforesaid, three or thereby bills or other notices without the consent of M'Dougall & Hamilton, house factors, No. 109 West George Street, Glasgow, proprietors of said building or part of a building.

Kidger objected to the relevancy of the complaint on the ground that the sub-section libelled was not directed against either proprietor or occupier, which latter he was, but against third parties.

The Magistrate repelled the objection, and thereafter, on the evidence adduced, found “the charge of having caused to be affixed the bills as libelled proven, convicted Kidger of the offence libelled,” and fined him ten shillings and sixpence, with the alternative of seven days' imprisonment.

Kidger presented a bill of suspension, in which he averred that the complaint was irrelevant on the ground above specified, and pleaded—“(1) The complaint on which conviction of the complainer proceeded is irrelevant, in respect (1) that the sub-section or clause founded on does not apply to him; (2) that he is tenant and occupier of the subjects referred to; (3) that the bills or notices referred to are notices relating to the complainer's business or samples of the work done by him therein; and (4) that no offence whatever, either under statute or at common law, is disclosed in the complaint.”

The respondent, the Procurator-Fiscal, objected to the competency of the suspension, on the ground that review by the High Court of Justiciary was excluded by sections 131 and 132 of the Glasgow Police Act 1866.

He argued—The objection here was to relevancy. It was so stated by the suspender. Review, if competent at all, could only be by the Circuit Court. The case was not like those of which Marr v. M'Arthur, March 28, 1878, 5 R. (J.C.) 38, 4 Coup. 53, was a type, where the proceedings of the Inferior Court were funditus null, the complaint and proceedings being plainly out with the statutory authority under which it acted. It was in such cases only that the Court would interfere— Walker v. Lang, November 25, 1867, 5 Irv. 506, and 40 Scot. Jur. 89; Mackenzie v. Lang, November 9, 1874, 2 R. (J.C.) 1; De Belmont v. Lang, June 28, 1871, 2 Coup. 95, and 43 Scot. Jur. 572; O'Brien v. M'Phee, October 30, 1880, 8 R. (J.C.) 8. On the merits, the sub-section founded on made it a condition of lease that the consent of both the proprietor and occupier should be obtained to affix bills to a building. The charge relevantly stated that the consent of one of these, the proprietor, had not been obtained. It was beside the question to say that the person here charged was the occupier; the statute made no exception in his favour. If this were not the meaning of the statute the clause would have run, “without the consent of the owner or occupier.” But assuming that the clause applied only to third persons not being occupiers or proprietors, the question who was an occupier was always a question of circumstances, and it was perfectly open to read this complaint as setting forth that the suspender was an occupier for a limited purpose, which gave him no right to affix bills to the premises in the manner alleged. The letting of premises as a shop would not justify their use as a place for sticking bills. In such circumstances the use of the premises being beyond the implied authority of the occupier, was struck at by the Act unless the consent of the proprietor had been obtained.

The suspender argued—(1) No offence was charged. The terms of the complaint excluded any offence, for in charging an offence said to have been committed without the consent of the proprietor and occupier it at the same time stated that the accused himself was the occupier. (2) The statute applied only to third persons not being either owner or occupier. The words “every person” in the statute must receive a reasonable interpretation secundum subjectam materiam—Maxwell on the Interpretation of Statutes, p. 75. In the introductory clause of the section the various acts detailed in the sub-sections were spoken of as “disorderly acts,” which indicated that the object of the provision was to prevent strangers from placing bills upon buildings without full authority. If the provision applied to third persons only, then there was no offence libelled, and the proceedings were funditus null. In these circumstances it was within the powers and was the practice of the High Court to give redress— M'Arthur, supra; Wemyss v. Black, March 19, 1881, 8 R. (J.C.) 25; Stirling v. Murray, June 13, 1883, 10 R. (J.C.) 59; Bell v. M'Phee, July 18, 1883, 10 R. (J.C.) 78; Craig v. M'Phee, March 14, 1883, 10 R. (J.C.) 51; Collins v. Lang, November 3, 1887, 15 R. (J.C.) 7, 1 White, 482.

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