ROSAN GIRARD JUDGMENT
LexInter | May 6, 2017 | 0 Comments

ROSAN GIRARD JUDGMENT

Council of State
ruling
on litigation
N ° 26188 26325

Published in Recueil Lebon

Assembly

M. Aurillac, Rapporteur

M. Gazier, Government Commissioner
Reading of May 31, 1957

FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLE

Seen 1] registered under n ° 26188 at the litigation secretariat of the Council of State on June 24, 1953, the letter from Sieurs Galleron [Xavier], Titeca-Beauport, Abouna [Félix], Sanier [Théogene], Magona [Sulpice], Herem [Hilarion], Beaujean [Jean-Jacques], Melon [Maurice], Gene [Euvrémond], Loques [Wilfrid], Lerus [Charles], Hourlier [Camille], Guizonne [Ferdinand], Joga [Fernand], Daridan [Blanche ], Daville [Hubert], Mezence [Norbert], Roux [Alphonse], of the widowed lady Gosnave [Michel], of the Sieurs Talange [Joseph], Berville [Joseph], of the lady Kader [Victor], of the Sioudan [ Donatien], Gradel [Ferdeline], Periao [Joseph],domiciled in Moule [Guadeloupe];
Seen 2] under n ° 26325, the summary request and the amplifying memorandum presented for the Sieur Rosan Girard residing in Moule [Guadeloupe], the said request and the said memorandum recorded at the litigation secretariat of the Council of State on July 2, 1953 and 19 February 1954, and tending that the Council should annul for excess of power a decree dated May 2, 1953 establishing a special delegation in the commune of Moule; Considering the law of April 5, 1884; Considering the ordinance of July 31, 1945 and the decree of September 30, 1953;
Considering that the document registered under n ° 26188 at the litigation secretariat of the Council of State does not constitute a request directed against the decree of May 2, 1953 but only a request for an urgent ruling by the said council on the appeal that Sieur Rosan Girard was to lodge against the aforementioned decree;
On the request of Sieur Rosan Girard: Considering that under article 44 of the law of April 5, 1884 “when no municipal council can be constituted a special delegation fulfills the functions”; that the attacked decree, which instituted a special delegation in the commune of Moule [Guadeloupe], was taken in application of this article;
Considering that it emerges from the documents in the file that a report of the general census of the votes, which mentions the proclamation of the election of 27 municipal councilors and which, according to his indications, was drawn up on April 26, 1953 at 24 hours, was established by the president and the members of the 1st office, in charge of the functions of centralizing office, following the electoral operations which had been carried out on that day in the commune of Moule for the renewal of the municipal council; that, if the Minister of the Interior maintains, in his observations on the appeal, that no proclamation would have been made publicly and that the aforementioned minutes would constitute a purely fictitious document, no document in the file provides any prima facie evidence in support of these allegations, expressly denied by the applicant who had chaired the centralizing office. That neither the circumstance that incidents had occurred during the ballot, nor the fact that due to the seizure by the gendarmerie of the ballot box of the 2nd office and its transfer to the prefecture for its counting by the council prefecture, sitting as an electoral office by virtue of a prefectural decree of April 26, 1953, elsewhere reported the next day, the general census operated by the centralizing office had only concerned the results of 3 offices out of 4, could not make regard as non-existent the proclamation made by the said office; that the vices which tainted this proclamation were only such as to justify the cancellation of the electoral operations by the election judge, regularly seized for this purpose by a referral from the prefect or by a protest from a voter; that consequently, the prefect of Guadeloupe, by claiming to note, by his decree 53-618 of April 27, 1953, the inexistence of the electoral operations carried out the previous day in the town of Moule, intervened in a matter reserved by law to the administrative jurisdiction; that having regard to the gravity of the infringement thus brought by the administrative authority to the attributions of the judge of the election said decree must be regarded as a null and void act. That, consequently, although it was not referred to the competent judge in the first instance to declare its nullity, it could not prevent the effects of the proclamation made by the centralizing office; intervened in a matter reserved by law for administrative jurisdiction; that having regard to the gravity of the infringement thus brought by the administrative authority to the attributions of the judge of the election said decree must be regarded as a null and void act. That, consequently, although it was not referred to the competent judge in the first instance to declare its nullity, it could not prevent the effects of the proclamation made by the centralizing office; intervened in a matter reserved by law for administrative jurisdiction; that having regard to the gravity of the infringement thus brought by the administrative authority to the attributions of the judge of the election said decree must be regarded as a null and void act. That, consequently, although it was not referred to the competent judge in the first instance to declare its nullity, it could not prevent the effects of the proclamation made by the centralizing office; election said decree must be regarded as a null and void act. That, consequently, although it was not referred to the competent judge in the first instance to declare its nullity, it could not prevent the effects of the proclamation made by the centralizing office; election said decree must be regarded as a null and void act. That, consequently, although it was not referred to the competent judge in the first instance to declare its nullity, it could not prevent the effects of the proclamation made by the centralizing office;
Considering that, if the prefecture council, sitting as the electoral office, noted, on April 29, 1953, that there was no need for a proclamation, it emerges from what has been said above that as it is of the instruction the proclamation of the election of 27 municipal councilors must be regarded as having been made on April 26, 1953 by the centralizing office; that this proclamation, which was not contested before the prefecture council, has become final;
Considering that it follows from all the foregoing that the above-reproduced provisions of article 44 of the law of April 5, 1884 could not be legally applied in this case; that, consequently, the sieur Rosan Girard is founded to maintain that the attacked decree, instituting a special delegation to the Mold in execution of this article, is tainted excess of power;

DECIDES:

DECIDES: Article 1: The aforementioned decree, dated May 2, 1953, instituting a special delegation in the commune of Moule [Guadeloupe] is canceled. Article 2: Dispatch of this decision will be sent to the Minister of the Interior.

Analysis by the Council of State

By this decision, the Council of State judges that certain administrative acts are affected by such an illegality that they must be regarded as non-existent, which makes it possible to challenge or revoke them at any time, even when the time limit for appeal has elapsed.

The municipal elections of April 1953 took place in a particularly tense context in the town of Moule in Guadeloupe. Following various incidents during the ballot and during the counting, the prefect demanded from the outgoing mayor, who chaired the centralizing office, that the ballot boxes be forwarded to the prefecture council so that he could proceed himself with the counting and the counting. proclamation of results. The mayor refused, but one of the four ballot boxes was seized by the gendarmerie. The centralizing office nevertheless proclaimed the results of the elections and the reappointment of the outgoing mayor. The prefect, instead of referring these results to the election judge, noted, by decree, the non-existence of electoral operations. A special municipal delegation was then set up and new elections were organized, which saw the defeat of the outgoing mayor. The latter attacked the prefect’s decree declaring the non-existence of electoral operations, the establishment of a provisional municipality and the elections which had been unfavorable to him. The Council of State agreed with him: when the time limit for appealing against the prefect’s decree had elapsed, he did not reject Mr. Rosan-Girard’s request as late but declared the act of the Minister “null and void”. prefect, “having regard to the seriousness of the infringement thus brought by the administrative authority to the attributions of the judge of the election”.

The Council of State only finds that an administrative act is legally non-existent in very exceptional circumstances. The legally inexistent act is affected by a particularly serious and flagrant illegality, which brings it closer to the assault, that is to say a decision of the administration clearly insusceptible to be attached to a power of the administration and seriously infringing the right to property or a fundamental freedom (see Action française ). But the respective fields of these two concepts do not overlap exactly: thus certain acts were regarded as legally non-existent by the Council of State without constituting aassault. This is the case, for example, with appointments by order, that is to say not followed by a real assignment of the interested parties in their functions (Sect. June 30, 1950, Massonaud , p. 400; Ass. 15 May 1981, Maurice , p. 221), measures taken after an official has been reached by the age limit (Sect. 3 February 1956, Fontbonne , p. 45), the decision taken by the mayor of a municipality and its deputies meeting in “board of directors” of the municipality, in place of the municipal council (November 9, 1983, Saerens, p. 453). However, the judge only makes exceptional use of the concept of a non-existent act: not all administrative acts affected by a very serious illegality are necessarily non-existent (eg: Ass. 10 February 1961, Chabran , p. 102) .

The non-existent act can be referred to the judge of excess of power at any time, without any time limit. It can be withdrawn at any time and cannot create rights. Finally, the judge automatically raises the non-existence of the act (May 5, 1971, Prefect of Paris and Minister of the Interior , p. 329).

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