Scottish Court of Session Decisions

The Burgh Police (Scotland) Act 1892, section 380, enacts—“Every person who is guilty of any of the following acts or omissions within the burgh shall, in respect thereof, be liable to a penalty. … (6) Being the occupier of a building or part of a building or other place of public resort for the sale or consumption of provisions or refreshments of any kind or for the sale or consumption of tobacco or cigars, opens his premises for business before five o'clock in the morning, or keeps them open or does business therein after midnight, unless specially allowed by the magistrates.”

The Burgh Police (Scotland) Act 1903, section 82, enacts—“(1) Every person who shall keep, or suffer to be kept or used, or use any house, building, part of a building or other premises, as an ice-cream shop or aerated water shop without being registered in a register to be kept by the town council, who are hereby required to keep a register for that purpose, in which they shall enter the names of applicants without charge, shall be liable to a penalty not exceeding five pounds, and in the event of such premises being continued to be kept or used for such purpose after conviction, to a continuing penalty not exceeding five pounds for every day during which the offence is committed or continued. (2) Section 316 of the principal Act shall be deemed to confer power on the town council to make bye-laws in regard to the hours of opening and closing of premises registered under this section, the hours for business not being more restricted than fifteen hours daily, and the provisions of the principal Act relating to bye-laws and the confirmation and enforcement thereof shall apply accordingly. (3) The town council may at any time authorise the inspection of any house, building, part of a building, or other premises used, or suspected of being used, as an ice-cream shop or aerated water shop, and the occupier, keeper, or other person having charge thereof shall give admission thereto at any time to the medical officer, sanitary inspector, constable, or any other person authorised in writing by the town council, and every occupier or keeper or other person having the charge of such premises who shall not admit such authorised person on exhibition of his authority shall be liable to a penalty not exceeding two pounds. …”

The Burgh Police (Scotland) Amendment Act 1911, section 1, enacts—“(1) Sub-section (1) and sub-section (3) of section 82 of the Burgh Police (Scotland) 1903 shall respectively be amended by the omission of the words ‘an ice-cream shop or aerated water shop’ occurring therein, and by the insertion in lieu thereof of the words ‘a place for public refreshment, at any time between the hours of eight of the clock at night and five of the clock of the following morning, or at any time on Sunday.’ (2) Sub-section (2) of the said section shall be amended by the insertion after the word ‘daily’ occurring therein of the words ‘except on Sunday, when the bye—laws may provide for closing throughout the day or for any specified hours; and to make bye-laws regulating the internal construction, lighting, and arrangement of such premises with a view to the orderly conduct and control thereof, and such bye-laws may be made either for the whole burgh or for any specified part or parts thereof’; and sub-section (4) of the said section shall be amended by the insertion at the end thereof of the words' provided that no bye-law made in pursuance of the powers conferred by this section shall take effect until it has been confirmed by the Secretary for Scotland. … (7) Nothing contained in section 82 of the Burgh Police (Scotland) Act 1903, as amended by this Act, shall affect or prejudice the sale or supply of refreshments or provisions in any premises to persons residing or lodging therein, or at any railway refreshment room; or shall be construed as allowing any premises to be kept open at any time at which they are required under the provisions of the said Act, or any other Act for the time being in force, to be kept closed, or (except as expressly provided) as affecting or derogating from the provisions of the said Act or any other Act respecting the right of entry to or other regulation of premises to which the said section 82 applies.”

Acting under the powers conferred upon them by the above Acts the Magistrates of Greenock enacted the following bye-law:—“The Corporation of Greenock, in virtue of the powers conferred by the Burgh Police (Scotland) Acts 1892 to 1911, and particularly section 82 (2) of the Burgh Police (Scotland) Act 1903, and section 1 (2) of the Burgh Police (Scotland) Amendment Act 1911, and sections 316 and 317 of the Burgh Police (Scotland) Act 1892, and of other powers, do hereby make and

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enact the following bye-laws No person registered in terms of section 82 (1) of the Burgh Police (Scotland) Act 1903, as amended by the Burgh Police (Scotland) Amendment Act 1911, to keep or use any house, building, part of a building, or other premises, as a place of public refreshment, shall keep such premises open, or suffer them to be kept open at any time on Sundays, or except during the hours between five of the clock in the morning and ten of the clock at night on any other day, with the exception of Saturday, when the hour of closing shall be eleven o'clock p.m.’ Penalty.—Every person who shall commit a breach of the foregoing bye—law shall be liable to a penalty not exceeding forty shillings for each breach, provided always that the magistrates or other court before whom the penalty hereby imposed is sought to be recovered, may order the whole or part only of such penalty to be paid, or may remit the whole ‘penalty. Made by the Corporation of Greenock, this Twenty—ninth day of April, Nineteen hundred and twelve.— W. B. M'millan, Provost; Adam P. Smith, Magistrate; Andrew Dunn, Magistrate; C. Macculloch, Town Clerk.”

Joseph Lopes, keeper of a place for public refreshment at No. 45 Hamilton Street, Greenock, pursuer, brough tan action against the Corporation of Greenock, defenders, the second conclusion of which asked for declarator “that the defenders have no power, title, warrant, or authority by themselves or any of them, or by their servants or anyone acting on their behalf or by their authority, to refuse to register in said register that part of the pursuer's premises situated on the street floor of No. 45 Hamilton Street, Greenock, and extending from a red line, marked with the letter A on the plan to be produced at the calling hereof, backwards to the back wall of said premises, indicated by the letter B on said plan, and measuring 70 feet or thereby in length from front to back, and 12 feet or thereby wide, said area being indicated on said plan by the letters A, B, C, D; or to order or require the pursuer to register in said register the whole area or ground floor of said shop, building, or premises from the wall thereof abutting on the south side of Hamilton Street, indicated by the letter X, to the back wall of said premises, indicated by the letter B, and measuring 90 feet or thereby in length from front to back, and 12 feet or thereby wide, the whole of said area of said ground floor of said shop or premises being indicated by the letter X, Y, Z, A, C, D, B.”

The pursuer pleaded—“(6) The said statute having enacted that parts of buildings may be registered, the defenders have no title or warrant to require as a condition-precedent to registration that other parts of the same buildings should also be registered, and the pursuer is therefore entitled to decree in terms of the conclusions of the summons. (8) The defenders discretion extending only to the making of bye-laws affecting premises when registered they have no title or warrant to require the inclusion of the pursuer's front shop as a condition-precedent to registration. (9) The pursuer having applied for registration of part of said premises, and ( a) said part being suitable for registration, or ( b) the pursuer having offered all reasonable alterations to make them still more suitable, the pursuer is entitled to decree as aforesaid.”

The defenders pleaded—“(2) The pursuer's averments being irrelevant and insufficient to support the conclusions of the summons, the action should be dismissed. …”

The facts and the gist of the averments are given in the opinion ( infra) of the Lord Ordinary ( Hunter) who on 1st July pronounced an interlocutor sustaining the first part of the second plea-in-law for the defenders and dismissed the action.

Opinion.—“The pursuer, who is the occupier of various places for public refreshment in the burgh of Greenock, has brought this action against the Corporation of said burgh with a view to having certain of his rights as a trader determined. His specific ground of complaint against the defenders is this—One of his shops is situated on the south side of Hamilton Street, Greenock. The premises are said to be large and of a superior class, extending backwards from the street a distance of 90 feet. They are from 10 to 15 feet wide. He desires to have the portion of these premises extending from a red line marked by the letter A on the plan to the back wall at letter B thereof registered as a place of public refreshment, but the defenders, who are the local authority entrusted with the duty of registering places for public refreshment, have refused his request for registration.

“The statutory provisions bearing upon the registration of places of public refreshment so far as it is necessary to note them in disposing of the present action are as follows [ His Lordship quoted the sections and bye-law above set forth.] …

Acting under the provisions of the statutes to which I have referred the defenders have passed bye-laws that no person registered under the Acts shall ‘keep such premises open, or suffer them to be kept open at any time on Sundays, or except during the hours between five of the clock in the morning and ten of the clock at night on any other day, with the exception of Saturday, when the hour of closing shall be eleven o'clock p.m.’ ‘ Penalty.—Every person who shall commit a breach of the foregoing bye-law shall be liable to a penalty not exceeding forty shillings for each breach.’

It may be noted that registration is not necessary when articles are sold for consumption off but not on the premises, or where the premises are kept closed on Sundays and during the hours from eight at night till five in the morning. If, however, premises are licensed I do not think that the trader is entitled to have them open during hours when bye-laws prescribe for their being closed, although they are kept open for trading which might lawfully be carried on in unregistered premises. In other words, a trader is not entitled to say I shall sell for consumption on the premises only during the hours when registered premises

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may be kept open, but I shall sell during other hours for consumption off the premises. That appears to me to result from the decision of the High Court of Justiciary in Lena v. Davidson, 1913 S. C. (J.) 76, at p. 82.

According to the pursuer's contention a town council are not entitled to exercise any discretion in the registration of places of public refreshment, but are bound to place upon the register any premises or any part thereof where an applicant indicates that he desires to carry on business. The pursuer has framed certain conclusions giving effect to his general contention. It was argued for the defenders that the action so far as the general conclusions are concerned is incompetent. I do not think that a party is entitled to bring an action against a public authority for the construction of a statute except in so far as that authority has acted or proposes to act upon a construction of the statute adverse to the interests of the individual complaining. It is not necessary for me, however, in the present case to give a decision upon the plea of competency. Upon the assumption that all the conclusions of the action may be competently entertained I think that the pursuer's contention is not well-founded. If these general conclusions are affirmed there would be nothing to prevent the occupier of premises from separating them by a moveable curtain and asking for registration of one part, the other part being left unregistered. It would be equally open to him to designate by a chalk mark the portion of his premises which he desired to register. The pursuer's case is that the Town Council must pass bye-laws to secure proper construction and internal arrangement of the part of his premises that he has selected for registration. I do not agree with this view. According to the statute what is to be registered is a place of public refreshment, which in turn is defined as a building or part of a building or other place of public resort for the ‘sale for consumption therein’ of certain enumerated articles. It is not said that any portion of premises where such sales as are indicated take place may be registered. I think therefore that the Town Council must in each case consider whether the place proposed to be registered complies with the statutory requirements.

Turning to the averments as to the part of his premises which the pursuer desires to be registered, I find that the defenders in their answers say—‘On week-days, from the hour of opening of the said premises to 8 p.m., the pursuer uses the whole of his said premises for the sale of refreshments for consumption both off and on the premises, but mainly for consumption on the premises. On week-days at the hour of 8 p.m. service of customers for consumption on the premises ceases to be made over the counter marked C, H, I on the said plan produced herewith, and consumption in the front part of the said premises, from the line F, G, D, E on the said plan to the street, ceases. Sales for consumption off the premises continue to be made from the said counter and consumption on the premises takes place in the back portion of the said premises from the line F, G, D, E on the said plan to the back wall of the premises. At 10 p.m. on week-days, with the exception of Saturdays, when the hour is 11 p.m., consumption on the premises ceases. A hurdle or barricade is then put into position, and sales for consumption off the premises are continued in the front portion of the premises up till 12 o'clock midnight. On Sunday an all-day trade for consumption off the premises is carried on by the pursuer in the said front portion of his premises till 12 o'clock midnight. At all times when the said premises are open refreshments brought from the said back portion of the premises are sold over the said counter in the said front portion of the premises. Up till 11 o'clock p.m. on Saturdays and 10 o'clock p.m. on other weekdays refreshments brought from the said front portion of the premises are sold in the said back portion of the premises. At all times the pursuer's servants pass freely from the one part of the premises to the other in the course of their duties in serving customers.’ The pursuer neither admits nor denies the accuracy of these averments. In argument, however, he maintained that he was quite entitled to do what he is said to have done. I had some doubt as to whether I should not allow inquiry as to these averments, and also as to whether the portion of the premises proposed to be registered is in a proper sense of the term separated from the rest of the premises. The pursuer, however, admits that the gate which he puts up for the purpose of excluding the public from the registered part of his premises does not prevent the pursuer or his servants from serving the customers across the counter in the front shop ‘with refreshments for consumption off and brought from the said back portion of the said premises.’ The kitchen is in the back portion of the premises, and it is plain that the pursuer, while he excludes the public from that portion of his building, intends to keep it open in connection with his business for sale off the premises during hours when registered premises must be closed. In my opinion he is not entitled to do this, and as his premises are constructed with the very object of enabling him to effect what I consider a breach of the statute I think that the defenders were entitled to refuse registration. I shall therefore dismiss the action as irrelevant.”

The pursuer reclaimed, and argued—The defenders had power to issue bye-laws regulatiug internal construction, but in the absence of any such bye-law they were bound to register if a building or part of a building was tendered to them. That servants had access to the premises to be registered after the prescribed hours, and that the mode of excluding the public was a sparred gate was irrelevant in the question of registration, for so long as the premises were not open to the public as a place of public refreshment they were in law closed— Clapperton v. Dickie Smith, 1915, S.C. (J.) 60, 7 Adam 637, 52 S.L.R. 667. In these circumstances the pursuer's business was a legal one, and the defenders' refusal to register was an illegal restriction placed on a legal trade— Corporation of Toronto v. Virgo, [1896] AC 88;

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Rossi v. Magistrates of Edinburgh, 1904, 7 F. (H.L.) 86, 42 S.L.R. 79; Scott v. Corporation of Glasgow, 1899, 1 F. (H.L.) 51, 36 S.L.R. 965. Lena v. Davidson, 1913 S.C. (J.) 76, 7 Adam 129, 50 S.L.R. 757, and M'Intyre v. Persichini, 1914 S.O. (J.) 126, 7 Adam 433, 51 S.L.R. 610, were not in point, for there the premises were open to the public. De Prato v. Magistrates of Partick, 1906, 8 F. 564, 44 S.L.R. 366, was not in point, for the decision related only to the question of whether or not a bye-law was ultra vires. No doubt the defenders had an administrative duty to perform, but the statutes did not indicate the evil that that duty was imposed to check, and it was illegitimate to go beyond the Acts to discover this evil, and in respect to registration of these premises the defenders were in the same position as with regard to registration under other sections of the Acts. The premises tendered for registration were “part of a building” in the sense of the Acts—Burgh Police (Scotland) Act 1903 (3 Edw. VII, cap. 33), sec. 81; Burgh Police (Scotland) Act 1892 (55 and 56 Vict. cap. 55), secs. 386 ( b) and 316–324. “Part of a building” meant a part divided effectively from the rest, but not necessarily permanently or continuously. Such a part of a building had been tendered to the defenders, and they had no option but to register it. If they considered the construction of the premises rendered evasion of the Act easy, their remedy was to pass a bye-law dealing with internal construction or to appeal to the criminal law. The Shops Act 1912 (2 Geo. V, cap. 3), sec. 10, recognised that various trades might be carried on in the same shop.

Argued for the respondents—The premises tendered for registration were divided at one point from the other premises by an ideal line. In construing the Act the respondents were bound to keep in view the evil to be abated, which was well known. Keeping this in view, the respondents were bound and entitled to construe “part of a building” as meaning part of a building effectively divided from the rest, and if, as here, the division was purely ideal, they might refuse to register. The possibility of any effective closing was excluded by the access of the servants to the back premises. If the magistrates had no discretion in this matter, absurd results would follow, e.g., they might have to register an ex-fever hospital. Further, the object of the Act was to give the magistrates a definite administrative area; that was impossible if there were no definite boundaries. Premises did not cease to be open so long as servants could enter or leave them— M'Intyre v. Perischini ( cit. sup.); Lena v. Davidson ( cit. sup.). De Prato v. Magistrates of Partick ( cit. sup.) showed that in this matter the magistrates were not in the same position as with regard to granting of licences.

At advising—