Scottish Court of Session Decisions

Lord President (Clyde).—This is an application to the Dean of Guild Court in Greenock at the instance of a company styled “The Scottish Cinema and Variety Theatres, Limited.” Its object was to obtain approval of plans for the alteration and erection of certain buildings “to be used as a picture house.” I am quoting from the application. There had been a pre-existing building on the site, which had been used for the purpose of cinematographic exhibitions—or, at any rate, mainly for that purpose,—and the object of the applicants was to improve and enlarge the building.

By section 251 of the Greenock Corporation Act of 1909 it is enacted that “no theatre music hall or circus … shall be built to accommodate more than 1000 persons unless on three sides at least it is distant fifteen feet from the nearest building and is provided with sufficient exits giving direct access to at least two public streets.” The plans which were submitted to the Dean of Guild did not conform to the provisions of that section. They showed a building which was intended to accommodate 1700 persons, but which was not—on three sides of it—distant fifteen feet from the nearest building, and was not provided with exits giving access to at least two public streets. Objections were lodged by an adjoining proprietor, who complained that the building as altered and erected would infringe section 251. No exception has been taken to the locus standi of the neighbour to object. The applicants pointed out to us, with truth, that the pre-existing building also infringed section 251; but that circumstance is hardly a relevant consideration to adduce in defence of a further infringement of the section, assuming the section to apply.

The Dean of Guild has overruled the objection, and the question for our decision is whether the building referred to in the application is a “theatre” within the meaning of section 251. Nobody suggests that it is either a “music hall” or a “circus.” It will be observed that these three classes of building are referred to in the section as representing three well-known and self-contained classes. No general words are added to bring in buildings ejusdem generis with theatres, music halls, and circuses. We are thus thrown back on the proper meaning of the word. Moreover, the section is one which is restrictive of liberty in the administration of property; and, while it must be rigorously applied as an enactment in the interest of public safety, its restrictive effect ought not to be extended beyond its terms.

[His Lordship then gave the description of the proposed building, quoted above, and continued]—A “theatre” is properly a place in which spectacles of action—dramas in short—are publicly exhibited; but it cannot be disputed that the word has for long been applied to houses used for ballets and variety entertainments in which the display is dramatic only in an illegitimate sense. There is undeniable force in the objector's contention that the projection on a screen of moving photographic films is really a spectacle of action—a drama in fact—just as much as a stage play performed by living actors and actresses. A film is, indeed, precisely an instrument for producing, or rather reproducing, the action of a stage play; and it is not for the first time in the history of civilised society that the supporters of legitimate drama are heard to complain:—

jam migravit ab aure voluptas

Omnis ad incertos oculos et gaudia vana.

What is more to the point—I think the word “theatre” has recently begun to be widely applied to places in which films are shown. A glance at the directory of any modern city will provide evidence of this.

The Act we are construing was passed in 1909; and, whatever might be said regarding the connotation of the word “theatre” in an Act passed twenty years later, I think we must interpret the word with regard to its meaning in ordinary language at the date of the passing of the Greenock Act. It so happens that the Greenock Act was passed in the same year as the Cinematograph Act, 1909, and it is worth noting that the word “theatre” is never employed in that Act in reference to a place devoted to the exhibition of films. Using, as best I can, such general knowledge as is available to me, I do not think that, twenty years ago, the word “theatre” was in ordinary use to designate what was then being introduced to the public as a “cinema,” and came later to be called a “picture-house.” It included, I think, at that time a place of “variety” entertainment, although—curiously enough—such places were, both before and after, often designated “music halls” or “halls,” in order to distinguish them from “theatres” properly so called. But, if I am right in my interpretation of the word “theatre” as ordinarily used in 1909, it should, I think, follow that section 251 of the Greenock Act must be construed accordingly, and that the Dean of Guild was right in refusing to hold it as applying to the applicants' picture-house.

Lord Sands.—In this case we have to deal with a restriction upon a right of property. It is a somewhat unusual restriction. I do not say that it is unreasonable or unnecessarily severe, but we are informed that it is so rare that another instance of it in a similar statute has not been found. In these circumstances, as it appears to me, it is our duty to construe the restriction upon the right of property strictly, and not to indulge in any easy latitude of interpretation. The words which describe the buildings which are to be affected by the legislation which we are considering are the words “theatre music hall or circus.” Now, these words appear to be deliberately chosen out of a wider enumeration contained in the adopted section of the Burgh Police (Scotland) Act, 1892. I think it is section 395 which is adopted by section 355 of the local Act. The cinema or kinema was not unknown, but the enterprise was a new one, an invention not altogether familiar throughout the country in 1909, so far as I recollect, although the form of entertainment had already attracted a good deal of attention, and houses were being erected in different parts of the country. They were not then known as theatres. Nor were the early ones constructed in a manner so nearly resembling a theatre as are the more recently erected ones. Accordingly, I am of opinion that, if the framers of the local Act had meant to include them, they would have been specially mentioned. They were not then so familiar, and were not then so identified in language or otherwise with the theatre, that one would expect them just to be slumped under the general word “theatre.” On the other hand, they were not altogether unknown, and one would not have expected them to be entirely overlooked in considering to what buildings restrictions should be applicable. Accordingly, I am of opinion that, seeing that we have this specific enumeration of theatre, music hall, or circus without any generality, we are unable to come to the conclusion that it was contemplated that these cinema buildings should be included. It appears that the buildings here in question are primarily designed as a picture house, and would need some adaptation to fit them for use as a theatre on any large scale. If the buildings had been designed mainly and primarily as a conveniently and fully equipped theatre, a different question might have arisen, viz., as to whether warrant for their erection fell to be granted merely upon the ground that the promoters professed their intention of using them as a picture house. But that is not, as it appears to me, the present position, and I have come to the conclusion that we must treat these buildings as being intended and designed primarily as a picture house. In this view, for the reasons I have indicated, I have come to the conclusion that they are not within the category contemplated by the Act of 1909.

Lord Blackburn.—I concur, although I am bound to say I have found the question in this case a somewhat difficult one. When the case was first presented to us it appeared to me that, popularly speaking, it was difficult to distinguish a modern picture house from a theatre, and reasonable that the building of the one should be subjected to the same sort of restrictions as the building of the other. But the terms of the local Act suggest great doubt as to whether it was really intended to apply to any sort of building other than one adapted and used for theatrical performances such as are given in a theatre, and I think it is clear that the proposed building is not adapted, and could not well be used, for such a purpose. As the restriction interferes with the right of the petitioners to make full use of their own property, I think that they are entitled to the benefit of any doubt which may exist as to the meaning of the Act. Accordingly, I have come to the conclusion, agreeing with your Lordships, that the judgment of the Dean of Guild is right and should be affirmed.

Lord Morison.—In this case the question arises on the construction of section 251 of the Greenock Corporation Act, 1909. It is to be observed that the section applies only to theatres, music halls, and circuses, and these are all places of entertainment which cannot be opened to the public unless the appropriate ad hoc licence has been obtained from the proper authority. In my opinion the section applies only to buildings for which an application for a theatre, music hall, or circus licence is to be made. I am satisfied that the section has no application to a building about to be constructed and afterwards, on its completion, used as a picture theatre licensed under the Cinematograph Act, 1909. I wish to add that I observe from the Dean of Guild's note that he recognises the difference in the requirements necessary for a theatre licensed as such and a picture theatre licensed under the Act of 1909. In the latter case it is essential that the building should comply with the special regulations prescribed by the Secretary of State. These special regulations have no application to a theatre which is used exclusively for the performance of stage plays. For these reasons

I am of opinion that the interlocutor of the Dean of Guild is right and should be affirmed.