17 February 1950
Considering that by an order of 29 January 1941, issued under the Act of 27 August 1940, the Sauberthier estate (Montluel commune) belonging to Madame Lamotte, née Vial, was granted to Mr Testa by the Prefect at Ain for a term of nine whole and consecutive years commencing on the 1 February 1941; that by a decision of 24 July 1942 the Conseil dEtat annulled that grant on the grounds that the estate was not abandoned and uncultivated for more than two years; that by a later and consequential decision of 9 April 1943 the Conseil dEtat annulled a second order of the Prefect of Ain dated 20 August 1941 granting to Mr Testa three further parcels of land adjoining the estate;
Considering finally that by a decision of 29 December 1944 the Conseil dEtat annulled for misuse of power a third order dated 2 November 1943 whereby the Prefect of Ain with the aim of delaying enforcement of the two decisions mentioned of 24 July 1942 and 9 April 1943, requisitioned the Sauberthier estate for the benefit of Mr Testa;
Considering that the Minister of Agriculture refers to the Conseil dEtat the order dated 4 October 1946 whereby the Lyon interdepartmental Prefecture council, seised of a complaint by Madame Lamotte against a fourth order of the Prefect of Ain once again granting the Sauberthier estate to Mr Testa, ordained the annulment of the said grant; that the Minister maintains that the Prefecture Council ought to have rejected that complaint as inadmissible by virtue of article 4 of the Act of 23 May 1943;
Considering that article 4 paragraph 2 of the said Act of 23 May 1943 is in these terms: The making of the grant may not be the object of any review, administrative or judicial; that, if this provision, to the extent that its nullity has not been established under the Ordinance of 9 August 1944 on the re-establishment of republican legality, has the effect of removing the right of review which article 29 of the Act of 19 February 1942 had made available to the owner to challenge before the Prefecture council the validity of the grant, it has not removed the right to have the making of the grant reviewed before the Conseil dEtat on the issue of lack of powers, a ground of review available against any act of the executive even in the absence of a statutory text, and one whose purpose is, in conformity with the general principles of law, to ensure respect for legality;
that it follows from this that, on the one hand, the Minister of Agriculture is entitled to request annulment of the order cited above of the Lyon Prefecture council dated 4 October 1946; but on the other hand that it is for the Conseil dEtat, as the judge of the vires of executive acts, to decide on Madame Lamottes claim for the annulment of the order of the Prefect of Ain of 10 August 1944;
Considering that it is proved by documentary evidence that the said order, which purely and simply maintained the earlier grant in favour of Mr Testa for a term of nine years commencing on 1 February 1941 as stated above, had no purpose other than to block the above-mentioned decisions of the litigation section of the Conseil dEtat and is therefore tainted with misuse of power . . .
(The Order of the Lyon Prefecture Council of 4 October 1946 and the Order of the Prefect of Ain of 10 August 1944 are annulled).
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