Conclusions Leon Blum Spoux Lemonnier
LexInter | November 6, 2017 | 0 Comments

Conclusions Leon Blum Spoux Lemonnier

Conclusions of the government commissioner Léon Blum  
on CE July 26, 1918, Epoux Lemonnier c. Municipality of Roquecourbe

The commune of Roquecourbe, in the Tarn department, organizes each year, for the Sunday following Saint-François, a local festival which, in 1910 fell on October 9. This festival, which enjoys great notoriety in the region, usually attracts many inhabitants of neighboring towns, and in particular Castres. Among the attractions offered to visitors is, from time immemorial, it seems, a rifle shooting the aim of which consists of a chicken, duck or rabbit, fixed on a board floating on the waters of the Agout river, which crosses Roquecourbe.

An engineer from Castres, Mr. Lemonnier, accompanied by his wife, went to Roquecourbe to see the party. Leaving the station, he headed for a public promenade, which had just been created by the development and planting of ‘a rural road which runs along the river to a fountain, known as the fountain of Siloë, very famous it seems in the region.  
Hardly had they started in the direction of the fountain when bullets whistled around them. M. Lemonnier seizes his wife’s arm to make her turn back. At the moment, a bullet grazed her chin and hit Madame Lemonnier in the middle of her right cheek. It was at 6 o’clock in the evening.  

According to Mr. Lemonnier, between 3 and 4 hours, a number of people on the promenade had already been grazed by bullets and had hastened to go and warn the gendarmerie. The mayor, instead of forbidding the continuation of the shooting, would have contented himself with ordering the shooters to extend their objective to the left. It was only after the accident of which Ms. Lemonnier was a victim that the mayor ordered the immediate cessation of firing.  

The consequences of this accident were extremely serious. The bullet, inserted between the spine and the pharynx, very close to the carotid, could not be extracted. Professor Pozzi, in particular, found the extraction too dangerous to be attempted. The projectile had passed through the muscles which actuate the lower jaw, and for many months Madame Lemonnier, unable to open her mouth, could only be fed by means of probes. The cheek remains deformed. Mme Lemonnier’s health, as well as her nervous balance, appear to be seriously compromised.

The Lemonnier consorts were not familiar with the case law of the conflict tribunal, and in particular the Feutry decision, then quite recent (Trib, des conflicts, 29 Feb. 1908, Section et P. 1908. 3.97; Pand. Per., 1908, 3.97) , which recognized the competence of the administrative jurisdiction to hear actions for liability directed against any public person, against a municipality as well as against the State, and by application of the same principle, which is the principle of the separation of powers.  
They therefore summoned before the civil court of Castres Mr. Laur, mayor of Roquecourbe, taken as representative of the municipality, and, as necessary, in his personal name.  

The court of Castres did not know this jurisprudence much more precisely than the Lemonnier consorts. By judgment of Nov. 9, 1911, he rejected the merits of the action directed against the mayor personally, the fault with which he was accused did not stand out, he said, from the exercise of his municipal function, and he was declared incompetent, as he should, on the action against the mayor as the legal representative of the municipality. But he based this declaration of incompetence on the distinction between police and management acts, and on the principle that the responsibility of the municipality could only be called into question, before the judicial authority, because of the acts. management of the mayor.

Better inspired, or better advised, the Lemonnier couple then seized the municipal council with a formal claim for damages. This request is dated May 4, 1912. The municipal council responded to it on June 15 with a deliberation drafted with caution, and which clearly did not have the character of an explicit rejection. The Lemonnier couple then seized you with two appeals: one, n. 49,595, directed against the deliberation of June 15, 1912, if it were to be regarded as a rejection of their request; the other, n. 51.240, directed as necessary against the implied decision of rejection resulting from the silence kept for more than four months at their request of May 4, the deliberation of June 15 not having been followed within this period of time.

But – and this is what makes the difficulty of this case – the Lemonnier consorts, at the same time as they brought their claim for damages to the municipal council, had appealed against the judgment of the civil court of Castres before the Court. From toulouse.  
We do not really understand the reason for this call. It is still the responsibility of the municipality that they had heard declared by the main channel. It was only as necessary that they had taken the mayor in his personal name before the court of Castres.  

As the liability action against the municipality is now brought before the competent court by the request made to the municipal council and by the request to the Council of State, it is not clear why they simultaneously pursued the double action. brought before the judicial authority.  
However that may be, they appealed, and the Court ruled on a date subsequent to the registration of the applications before the Council of State, on Jan. 30, 1913.  

However, the Court reformed the judgment, not as the court declared itself incompetent to hear the action directed against the mayor, taken as representative of the municipality, – the judgment on this point is confirmed -, but in so far as he had rejected, in substance, the action brought against Mr. Laur personally, as guilty of a personal fault.  

Here are the essential considerations of the judgment on this point:  
“Whereas the Lemonnier couple, to obtain compensation for the damage thus caused, brought a double action; that one is directed against the commune of Roquecourbe, the other against the sieur Laur, mayor of this commune; that before the Court, the two parties recognized that it does not belong to the civil jurisdiction to assess whether the commune of Roquecourbe is civilly responsible for the accident; that the responsibility of the municipalities can, in such a case, be assessed only by the administrative jurisdiction, and that it is not even necessary to ascertain whether the mayor was carrying out an act of municipal management, or was exercising public power in the when he granted the impugned authorization;  
– Whereas the civil jurisdiction had to recognize that it does not have jurisdiction to rule on the action directed against the Sieur Laur, if the act alleged against the latter was an administrative act; but that any act performed by an official, even within the limits of his powers, should not be considered as administrative; that the gross and inexcusable fault of which he makes himself guilty is not, in law, the exercise of his function, but a personal failure, which engages his own responsibility; that the breach of professional duty is then distinguished and detaches from the administrative act; that assuredly, any fault does not deprive the act of the official of its administrative character, but that it is necessary, for it to be so, that the fault be serious, and of those which jurisconsults are accustomed to assimilate to fraud; that, in particular, the official who must ensure the observance of the law is not, when he violates it himself, considered as accomplishing an act of his function; that Sieur Laur, charged with ensuring the safety of his fellow citizens, had seriously failed in his duty, by authorizing the establishment of a shot under conditions such that the projectiles had, if the goal was not reached, strike the opposite bank and threaten walkers; that if, in previous years, the shots had been installed in the same place, the danger was less, an alley not then being fitted out on the other bank and open to the public; that warned, in the middle of the day, that the bullets of the shooters reached the strollers, the sieur Laur, instead of putting the shooting in interdict, took measures which only imperceptibly lessened the risk; that nothing can excuse such imprudence; that the respondent was guilty of a genuine offense against criminal law which could be characterized as a reckless injury; that this fault is detached clearly from the exercise of its function, and must be sanctioned by the civil jurisdiction; that the Court must therefore declare itself competent and raise the merits ”. respondent was guilty of a genuine violation of criminal law which could be characterized as recklessly injury; that this fault is detached clearly from the exercise of its function, and must be sanctioned by the civil jurisdiction; that the Court must therefore declare itself competent and raise the merits ”. respondent was guilty of a genuine violation of criminal law which could be characterized as recklessly injury; that this fault is detached clearly from the exercise of its function, and must be sanctioned by the civil jurisdiction; that the Court must therefore declare itself competent and raise the merits ”.  

Consequently, the Court condemned the Sieur Laur, taken personally, to pay to Mrs. Lemonnier, by way of damages, a sum of 12,000 fr.

But the coexistence of this legal procedure with the administrative procedure suggested to the municipality of Roquecourbe two grounds for inadmissibility.  

In the first place, the municipality maintains that the request or requests are late; that indeed, the Lemonnier consorts should have appealed, not against the deliberation of March 12, 1911, but against previous deliberations, in particular against a deliberation of March 12, 1911, by which the municipal council, informed of the intention of husband Lemonnier to summon the mayor before the civil court, formally declined any responsibility.  

Secondly, the municipality maintains that the Lemonnier couple, who obtained from the Court of Toulouse the personal conviction of Mr. Laur, are not admissible to sue the municipality for compensation for the same damage. The courts, says the town, have ruled, rightly or wrongly, that the mayor was personally responsible for the accident. Ms. Lemonnier was fully compensated. However, the victim of the same accident cannot ask twice from the same person, taken in different capacities, sometimes as a private individual, sometimes as a representative of a public person, compensation for the same damage;

The first objection will not stop us for a long time, and we will suggest that you reject it without any hesitation. The first request for damages which the municipal council was seized of by the Lemonnier couple is of May 4, 1912. The first deliberation by which he ruled, more or less explicitly, on this request, is of June 15. It is this deliberation which should have been referred to you. It cannot in any respect be considered as merely confirming previous deliberations, taken during or with a view to the action brought before the court of Castres, and while the municipal council had not yet seized of any claim for damages. interests brought directly before him, and to serve as a basis, if necessary,

We will also propose the rejection of the second plea of ​​inadmissibility, but without committing ourselves, on this point, to the same conciseness. The Toulouse Court, says the town, decided, rightly or wrongly, that Mr. Laur had committed a personal fault, and should be held personally responsible for the accident. We don’t have to research and you don’t have to say whether the Toulouse Court has ruled correctly or wrongly. We do not have to take the place of the Court of Cassation, today seized of an appeal from Mr Laur (appeal admitted on June 30, 1914 by the requests chamber, and on which the civil chamber has not yet decided. pronounced). It is she who will declare, in the last resort, whether Mr. Laur has committed a personal fault or not. But we believe that your decision must remain entirely independent of this assessment which belongs to the judicial authority. You have to find out whether the municipal public service has committed a fault such as to engage its liability, and you must continue this research, in our opinion, completely disregarding any judicial decisions that may or may have intervened on the issue of personal fault. . This research must be pursued independently of the action brought before the judicial authority, without any objection of inadmissibility being able to be drawn from this action, and even though a final decision of the judicial authority would have recognized this fault. , or pronounced a personal condemnation on this count. In other words, the declaration and reparation, by the judicial authority, of the personal fault, alleged against the individual who is, at the same time, the agent of a public service, does not in any way prevent, in our opinion, that the administrative authority searches and declares, for the same facts, the fault and the responsibility of the service. It is this opinion that we will be obliged to justify by some theoretical considerations and by an analysis, as rapid as possible, of your already established case law. the fault and responsibility of the service. It is this opinion that we will be obliged to justify by some theoretical considerations and by an analysis, as rapid as possible, of your already established case law. the fault and responsibility of the service. It is this opinion that we will be obliged to justify by some theoretical considerations and by an analysis, as rapid as possible, of your already established case law.

In a relatively recent state of law, the citizen injured by the vicious game of a public service had no recourse which enabled him to obtain compensation for the damage suffered by him. If he wanted to attack individually the official who had ordered or committed the illegal or wrongful act, he ran up against the end of inadmissibility drawn from art. 75 of the Constitution of 22 Frim. year 8, and, admitting that the Council of State granted authorization to prosecute before the ordinary courts, it would probably have come up against a declaration of incompetence before them, based on the principle of the separation of powers. If he wanted to attack the State, the responsible State, not as a boss of his employee, by virtue of art. 1384, C. civ., but as a legal person engaged by its own acts (its personality committing that of all its agents), the Council of State opposed to it a similar exception, legally speaking, with the exception of force majeure. It was legal doctrine and jurisprudence that the State or other public persons are not bound, except in limited cases, such as the case of damage resulting from the execution of public works, vis-à-vis citizens.  

The harm suffered by the vicious game of public services was a risk for them. They had to endure this chance of error, pay this error premium in exchange for the services, benefits of all kinds provided to them by the administrative organization of the nation and the exercise of constituted public power. It is in this state of law that the decree of the Government of National Defense of September 19, 1870, repealing art. 75 of the Constitution of the year 8. We can well say, today, that these polemics and these controversies have a purely historical character, that the intention of the authors of the decree, intention enlightened by the debates that had raised the ‘art. 75 under the imperial regime,  

This common law competence seemed the surest guarantee of individual freedoms. They wanted, as in England, for example, in the event of arbitrary arrest, illegal seizure, malignant irregularity of any kind, the official who gave or carried out the order would be liable to a personal sanction. The fear of a personal sanction is certainly, for the public servant, a much more powerful brake than the possible questioning of the service to which he belongs. The Administration would have intervened, if necessary, only as guarantor, and in the event of insolvency of the condemned agent. We can also say that the case law of the Conflict Tribunal, the classic case law marked by the Pelletier decision (Trib, of conflicts, July 30. 1873, Section 1874, 2.28. – P. chr. ; Pand. chr.), and the whole series of subsequent decisions, returned to the spirit of the decree of 1870. The court of conflicts tried to take up what the decree of 1870 had granted to an already long-standing demand of public opinion.  

What helped him there was that this text, as its authors had conceived it, obviously violated the principle of the separation of powers. The judicial courts, to which the civil servant accused of an administrative fault or even of a serious illegality were brought before them, were thereby obliged to determine the normal conditions of execution of the service, to declare the legality. There was an obvious encroachment on the functions of the administrative authority.  

In this classic debate, the Conflict Tribunal played a role analogous to that of the Supreme Court of the United States. The decree of 1870 only allowed that which was not contrary to a principle of public law considered to be of higher order, the principle of the separation of powers. It recognized the jurisdiction of the courts only to the extent that the search for the fault attributed to an official would not entail a critical examination of the normal and legal conditions of service. He thus arrived at the notion of personal fault, that is to say of the fault not detaching sufficiently completely from the service so that this fault can be sought and declared, without, ipso facto, the judge being forced to s ‘ interfere to any degree in the control and criticism of the public service. This case law brought down the privilege which had long enjoyed the civil servant prosecuted for an act unrelated to his function and under the conditions in which any other individual could have been. It did not satisfy the demand of public opinion, which demanded that the citizen injured by a serious administrative fault should have an action and be able to obtain compensation. This requirement became more and more pressing, as the democratic spirit, or simply the spirit of justice, penetrated more and more all of our laws. This case law brought down the privilege which had long enjoyed the civil servant prosecuted for an act unrelated to his function and under the conditions in which any other individual could have been. It did not satisfy the demand of public opinion, which demanded that the citizen injured by a serious administrative fault should have an action and be able to obtain compensation. This requirement became more and more pressing, as the democratic spirit, or simply the spirit of justice, penetrated more and more all of our laws. This case law brought down the privilege which had long enjoyed the civil servant prosecuted for an act unrelated to his function and under the conditions in which any other individual could have been. It did not satisfy the demand of public opinion, which demanded that the citizen injured by a serious administrative fault should have an action and be able to obtain compensation. This requirement became more and more pressing, as the democratic spirit, or simply the spirit of justice, penetrated more and more all of our laws. which demanded that the citizen injured by a serious administrative fault should have an action and be able to obtain reparation. This requirement became more and more pressing, as the democratic spirit, or simply the spirit of justice, penetrated more and more all of our laws. which demanded that the citizen injured by a serious administrative fault should have an action and be able to obtain reparation. This requirement became more and more pressing, as the democratic spirit, or simply the spirit of justice, penetrated more and more all of our laws.  

We have been, for more than a century, a people of administered. It was also necessary that the citizen could, if necessary, obtain reparation, equitable compensation when he found himself injured in his rights and in his interests by an error of the administration. The case law of the Conflict Tribunal left it completely helpless in this regard. It is therefore, in reality, this jurisprudence which was to determine little by little the abandonment of your jurisprudence to you, which was to lead you little by little to recognize, by a legal evolution which will remain your honor, the responsibility in principle, not only of the State, but of all the administrative legal persons, for fault of the public service. The personal liability of officials does not, in fact, exist since the Tribunal des Conflicts had withdrawn them from the action of the ordinary courts, it was necessary to proclaim the impersonal responsibility of the service. This solution was certainly less democratic than the one the National Defense government had wanted. It was the only one compatible with the principle which is still supposed to govern our public law, the principle of the separation of powers. But, as a political philosopher said a long time ago, for a nation to be free, it is not enough for it to be governed by several powers. This solution was certainly less democratic than the one the National Defense government had wanted. It was the only one compatible with the principle which is still supposed to govern our public law, the principle of the separation of powers. But, as a political philosopher said a long time ago, for a nation to be free, it is not enough for it to be governed by several powers. This solution was certainly less democratic than the one the National Defense government had wanted. It was the only one compatible with the principle which is still supposed to govern our public law, the principle of the separation of powers. But, as a political philosopher said a long time ago, for a nation to be free, it is not enough for it to be governed by several powers.  

Your case law has therefore evolved, while that of the Conflict Tribunal remained, after all, unchanged. The current state of the law is, therefore, the principle irresponsibility of the agent, the principle responsibility of the service. And, consequently, this responsibility of the State and of the other public persons is not, in any degree, that of art. 1384, C. civ. It is not as a boss, as an employer, that public figures are responsible.  

The owner’s liability is a guarantee liability, a secondary liability, which necessarily implies the main liability of the employee, author of the damage. However, precisely, the combined case-law of the conflict court and the Council of State exclude, in principle, the principal liability of the agent for fault of service. The State is responsible, not secondarily, as boss of the agent, but mainly, as manager of the service. The exceptional jurisdiction of the courts can therefore only be exercised when the personal fault of the agent can isolate itself, completely detach itself from the service. And the administrative fault, which will never be the fault of the service, will fall under the ordinary competence of the administrative judge.

But – and we come to the capital point here – if the exceptional jurisdiction of the civil judge can only be exercised when the fault of the agent is not tainted to any degree by fault of service, the reciprocal is not true, and cannot be true, vis-à-vis the normal jurisdiction of the administrative judge. The administrative judge will be competent when there is a fault of the service, whenever there is a fault of the service, and even though this fault of the service will be mixed, tinged to some extent, the error or the fault. individual of one of the agents of this service.  

In other words, the responsibility of the service being the principle, it follows that it suffices for there to be a possible questioning of the service so that the fault of the agent cannot be sought and his exceptional liability pursued. ; but it also follows, and by a consequence no less necessary, that it is not enough for the possible implication of the agent for the fault of the service to be covered and for the State to escape its normal responsibility. The civil judge is competent only when the fault of the agent is totally detached from the service; The administrative judge would be incompetent only if the service was completely detached from the alleged fault of the agent. There is therefore a possible coexistence of a fault which the

This accumulation of responsibilities, and as a result of actions, may occur, in borderline cases, as a result of differences of appreciation between the two authorities (this is the case in the present case), each of the two being sovereign. in his domain. But it is essential to note that this accumulation could occur, even without any confusion of jurisdiction, in all the cases where the act imputed to the agent takes the character of a fault in the penal sense, of a misdemeanor or of a common law crime.  

then, can and must say: The fault is perhaps detached from the service; it is up to the courts to decide; but the service is not detached from the fault. Even though the injured citizen would have an action against the guilty agent, even though he would have exercised this action, he has and can assert an action against the service, and no objection can be brought against the second action of the possibility or existence of the first.

This is not a simple theory, but the analysis of already established jurisprudence. In an Anguet case, from 3 Feb. 1911 (Section and P. 19113.137); Pand. per., 19113.137), you admitted the possible coexistence, in the same series of facts, of a personal fault of the agents and a personal fault of the service. In a comp case. colon, from the French Congo, on 12 Feb. 1909 (Rec. Of the judgments of the Cons. Of State, p. 153) a concessionary company of the State claimed damages, because of acts attributable to the agents of the administration, which had deprived it of the labor force, and had hampered its operations by arbitrary acts of a particularly serious nature.  

You replied that even admitting that these acts constitute personal faults, they were nonetheless carried out by a State official in the exercise of his functions, and are likely to engage the responsibility of the ‘State. Thus, even admitting that these faults can be detached from the service, what the judicial authority is the judge of, it is no less the service which provided them with the means to commit them, and which exposed the citizens to their consequences. harmful, that is to say that the service cannot be detached from these faults, and the responsibility of the service, which is in principle, must play.  

Same wording in a Carretier case of June 25, 1909 (Rec of the decisions of the Cons. Of State, p. 616). In a much more recent case (Beaudelet, March 15, 1918, to our conclusions of March 8, 1918), two women had been killed as a result of the recklessness of a warrant officer, who had unscrewed a grenade in the house where he was stationed. . The author of the damage could be prosecuted for reckless homicide. An action directed against him personally could lead to an award of damages to the victims or their dependents. The Minister concluded that the responsibility of the State should be exonerated. You condemned the State, however, because the facts complained of would not have taken place under the same conditions or  

In many cases of accidents caused by state automobiles, the driver could be prosecuted or even convicted of reckless homicide (for example, in the Groselier case of May 18, 1918). You have never admitted that the State could use this as an argument to decline its responsibility. In cases very recently judged by the Court of Conflicts (Lempereur and Fermentel, May 6 and June 17, 1918) the Minister of War had maintained that the State is freed from its responsibility for military requisitions, when the damage is attributable to acts of theft, looting, that is to say, criminal acts committed by quartered soldiers. It turns out that in matters of military requisitions, and as a result of an exceptional provision of the law, the responsibility of the service is assessed by the courts, instead of by the administrative judges; but the legal position of the question remains the same.  

The Conflict Tribunal recognized that the collective responsibility of the service could be called into question, even though individual acts could be blamed on the soldiers of the various corps which had succeeded one another in the degraded and looted buildings. But the most typical precedent is, in our opinion, your Babouet decision of July 16. 1914 (Rec. Of the judgments of the Cons. Of State, p. 882). During the laying of telephone wires carried out in Bordeaux by state workers, a wire breaks, falls on a tram trolley, of which it borrows the current, and hits a Sieur Babouet, who is injured, and his wife, who is electrocuted. Foreman Lajugie, who led the team, is condemned for reckless homicide by the correctional appeals chamber of the Court of Bordeaux. The judicial authority therefore admits the personal fault in the first place, and it awards Babouet damages. You nevertheless condemn the State, at the request of Babouet “considering, you say, that the circumstance that the foreman Lajugie would have been condemned personally, for imprudence in the direction of these works, by the judicial authority, to damages- interests towards Sieur Babouet, cannot have the effect of depriving the latter of the right to sue directly against the State for compensation for the damage suffered by him; that it will be up only to the administrative judge, to determine the form and the amount of this repair, to take into account, as legally required, the sentences already pronounced, for the same accident, for the benefit of Sieur Babouet, by the civil courts, and in particular to limit, if necessary, the State’s liability to the guarantee of all or part of the convictions ”. Thus, the judicial authority, entirely free to decide whether or not there is personal fault, considers that the act imputed to the agent engages his responsibility.  

But, on the other hand, the administrative judge, entirely free to decide whether or not there is a lack of service, is not stopped in this research by the possible or required decisions of the judicial authority. And, we repeat, this accumulation of actions is possible, even though the rules of jurisdiction laid down by the Conflict Tribunal would be rigorously observed by both courts, because the notion of personal fault does not exclude the fault of the service, because, in very many cases, a fault of the agent, having authentically the character of a personal fault is only made possible or generates consequences harmful to a third party because of the faulty conditions of the execution of the service.  

We will point out to you, moreover, and the point is important, that this accumulation of actions is possible, even when the individual fault is not attributable to a public service official and that it is however an error or an error. failure of the public service which made it possible. In the Thévenet affair of June 23, 1916 (Rec of the judgments of the Cons. Of State, p. 244), it was about a shooting accident, as today, and the fault was obviously attributable to the keeper. of the fairground hut. Nothing prevented him from pursuing him, and he was, in fact, condemned. However, you have ruled that this fault, primarily personal, since it was a matter of a simple citizen, did not exclude the responsibility of the municipality, if it was established that a malfunction of the municipal police service had conditioned this fault in its elements or in its consequences. You have condemned the municipality to full compensation for the damage, the showman being insolvent, except his recourse against the said showman. In the case of the escapees from Guyana (Sinais, Jan. 4, 1918), the assassins were convicts, not civil servants. Who prevented the beneficiaries of the victims from becoming civil parties in their trial? However, you have researched whether or not the public service had committed a fault that would have made the commission of this crime possible. the showman being insolvent, except his recourse against the said showman. In the case of the escapees from Guyana (Sinais, Jan. 4, 1918), the assassins were convicts, not civil servants. Who prevented the beneficiaries of the victims from becoming civil parties in their trial? However, you have researched whether or not the public service had committed a fault that would have made the commission of this crime possible. the showman being insolvent, except his recourse against the said showman. In the case of the escapees from Guyana (Sinais, Jan. 4, 1918), the assassins were convicts, not civil servants. Who prevented the beneficiaries of the victims from becoming civil parties in their trial? However, you have researched whether or not the public service had committed a fault that would have made the commission of this crime possible.  

Thus, even when it is a question of simple individuals, the questioning of a personal responsibility before the judicial authority does not prevent the questioning of the public service before you, when the fault of this service can be established. Why decide otherwise, when it comes to the individual fault committed by a public service agent, since, by hypothesis, this individual fault of the agent falls to the judicial authority only in so far as it was committed? apart from the quality of public official and under the conditions in which any other citizen could have committed it?

These are the logical consequences of the principle we have tried to identify. Responsibility for service is the rule; the State is relieved of this responsibility only if it can be held completely outside the fault, even personal of the agent. There is therefore a possible coexistence of personal fault and fault of service, either because they are theoretically compatible, or as a result of differences of assessment in borderline cases. There is likewise a possible accumulation of actions, and nothing in this consequence hurts the mind. What, on the other hand, would not be admissible would be the accumulation of reparations. The independent play of the two administrative and judicial authorities should not produce in this matter the shocking consequences that we pointed out in our conclusions on the Diéner affair of Jan. 25, 1918. When a State agent is a victim in service of an accident attributable to a third party, it can combine, according to the current case law of the Court of Cassation, full compensation for the damage at the expense of the responsible third party, and lump sum compensation at the expense of the State , in the form of accident pension. The compensation therefore exceeds the damage. It should not be that the injured third party of a set of facts where there appears both a personal fault of the agent and an administrative fault could accumulate, beyond the total damage,  

The Babouet decision was concerned with this consequence, and also the Thévenet decision. One provides, when the agent is convicted, that the service’s liability may be limited to a guarantee; the other seems to reserve a sort of recourse action by the condemned service against the individual perpetrator of the fault. The warranty term is not, in our opinion, very satisfactory under strict law. It seems to imply, between the service and its agent, a legal bond similar to that created by art. 1384. C. civ. between the boss and his employee, whereas the action based on personal fault and the action based on fault of service are, on the contrary, absolutely distinct and independent in their nature. The same objection could be made to the notion of recourse action. But it is necessary, we believe, to understand in a more practical and less strictly legal sense the indications of these two judgments. You simply wanted to attest to the flexibility of your case law in this matter. You wanted to indicate that you reserve the right to use all suitable procedures to fairly adapt the solution to the factual conditions of each case and to precisely avoid accumulation, while ensuring full and effective compensation for the damage suffered.

In fact, it is only by empirical procedures that the independence of the two actions and the autonomy of the two jurisdictions will make it possible to achieve this double object. The court which rules second will have to realize whether the first court seised intended to compensate in whole or in part. In the first case, if the compensation is complete, if the debtor of the compensation is solvent, it will have to reject on the merits, even though it admits the existence of a fault, and this for the reason that the Court cassation seems to us to have ignored in pension and accident cases, that is to say for the reason that interest is the limit of any action, and that total compensation, previously granted, has, in reality, suppressed interest. If the first court has implicitly accepted a sharing of responsibilities, and granted only partial compensation, the second will complete it to the extent that it deems useful, without ever the sum of the indemnities being able to exceed the totality of the damage. But these are, we repeat, specific solutions, which will be easily adapted to the various disputes, if we agree on these two principles: first, that despite the legal insolidarity of actions and the independence of the courts, the damage being one, the compensation already granted by one of the courts modifies the interest, which is the basis of the action, before the other; secondly, that despite its sovereignty, the second court seised must, for the form and the amount of the compensation due, settle its decision on the decision already taken by the first. This is not an attack on its sovereignty. In a line of ideas, certainly not identical, but nevertheless offering a certain analogy with the problem currently posed when it was a question of granting, of combining the action, sometimes divergent, of the administrative and judicial authorities in matters of expulsion from the presbytery, we have already argued before you (aff. Abbé Bouchon, and Abbé Hardel, of March 17, 1911, Section and P. 1913.3.129; Pand. pèr., 1913.3.129) that, although the two administrative authorities and judiciary were each deployed in an absolutely independent sphere, the practical necessity of an agreement should lead you to consider that the first of the two authorities which had pronounced itself held, so to speak, the other in state; that each of the two authorities was thus limited in its sovereignty by the obligation not to destroy the effect of decisions already taken competently by the other. Here, it is not strictly speaking the legal obligation not to destroy, it is the obligation at the same time fair and legal not to reduce and not to exceed, to remain neither above nor above. below the effective compensation for the damage. obligation not to destroy the effect of decisions already taken competently by the other. Here, it is not strictly speaking the legal obligation not to destroy, it is the obligation at the same time fair and legal not to reduce and not to exceed, to remain neither above nor above. below the effective compensation for the damage. obligation not to destroy the effect of decisions already taken competently by the other. Here, it is not strictly speaking the legal obligation not to destroy, it is the obligation at the same time fair and legal not to reduce and not to exceed, to remain neither above nor above. below the effective compensation for the damage.

We have finished this too long statement of principle. Its application to the facts of the case will be brief. You don’t have to know, you don’t have to investigate whether Mr. Laur, mayor of Roquecourbe, has committed a personal fault or not. It is a matter for the judicial authority. Had he committed it, this hypothesis would not exclude the possibility of a fault in service engaging the responsibility of the municipality. You only have to find out whether the service is responsible for what happened, or whether it is, on the contrary, independent of the act alleged against the mayor. There is no doubt in this regard.  

The service is committed to the facts that determined Ms. Lemonnier’s accident, and her error, her fault, are obvious. The municipal police department, represented by the mayor, was to organize the party so that visitors would not risk being shot in the head while walking along the river. As soon as the danger was signaled, the shooting had to be stopped. We will not come back to the facts that the Court of Toulouse recalled in the recitals that we have read, facts that we take as topical. Therefore, the responsibility of the municipality must be declared. But, as it is common ground that the Toulouse Court intended to grant full compensation for the damage, if this judgment had become final, we would suggest that you reject the merits of the Lemonnier couple’s request. The interest would no longer exist, and the action would therefore have to be ruled out. But this judgment was appealed against to the Court of Cassation.  

This appeal, admitted by the petitions chamber, is submitted to the civil chamber, which has not yet ruled. And, consequently, your decision, in order to be modeled with all the necessary flexibility on the particular facts of the case, must foresee and prevent two hypotheses. If the civil chamber breaks – which we have the right, speaking in our private name, to consider as probable – your decision will be the first to rule on compensation for the damage; the compensation due by the municipality to the Lemonnier spouses must be paid, and it will be up to the judicial authority, ruling after you on the action brought by the Lemonnier spouses against Mr. Laur, that it will be up to settle its decision on the yours, it being understood that you did not hear, you either, share the responsibilities, but that you have fully repaired the damage. If the civil chamber rejects – a hypothesis that we do not have the right to rule out – the judgment of the Toulouse Court of Appeal takes date and rank before your decision, which you must, therefore, adapt to that of judicial authority. It is Mr. Laur who will therefore ultimately have to bear the cost of the reparation, and you must take your precautions so that the compensation to which you will condemn the municipality does not add to that which Mr. Laur would have actually paid, but , on the contrary, merges with it. You can therefore say: either that the municipality will pay only after deduction of the sums that Mr. Laur personally would have paid by virtue of a final decision of the judicial authority, rendered prior to your decision; or else that the sentence is pronounced by you against the municipality only on the condition that it is subrogated, up to the amount of this sentence, to the rights which would result, for the Lemonnier spouses, from final decisions of the judicial authority, rendered for their benefit against Sieur Laur personally. The commune would thus receive from Sieur Laur what it would have paid to the Lemonnier couple. Sieur Laur would be the only one to pay, and the first decision rendered, that of the judicial authority, would be fully executed at the same time as yours. On the figure of this indemnity, we will confine ourselves to telling you that the demand before you is for 15,000 francs, and that the Court of Toulouse, for full compensation, awarded 12,000. The two figures are very close. Although the request, in reality, does not seem exaggerated to us, there is an obvious interest, so that the final solution of the dispute is simplified as far as possible, to use the figure of the Court of Toulouse.

We therefore conclude: the cancellation of the deliberation of the municipal council of Roquecourbe of June 15, 1912; that the commune be ordered to pay an indemnity of 12,000 francs, with interest from April 3, 1911, and interest from interest on Dec. 6, 1913, March 13, 1915 and Dec. 5. 1916, provided that the municipality is already subrogated, up to the said sum of the rights resulting for the Lemonnier spouses from the convictions which would be pronounced for their benefit, against the sieur Laur personally, by a final decision of judicial authority rendered prior to this decision; to the rejection of the surplus of the conclusions of the request n. 49595; that it be declared that there is no need to rule on request n. 51240; that the costs be borne by the municipality and those relating to petition n. 51,240 which remain the responsibility of Mr. Lemonnier.

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