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Case:
CE, 29 mai 1901, p. 333 Case Messieurs Casanova, Canazzi and others
Date:
29 May 1901
Translated by:
Professor Bernard Rudden
Copyright:
Professor B. S. Markesinis

Conseil d’Etat

Are taxpayers, acting as such, entitled to refer to the State Council the decision of a local Council involving the allocation of an item of expenditure to the commune budget? Affirmative answer: they are interested parties within the meaning of article 65 of the Act of 5 April 1884.

May a commune create a free medical service for all its inhabitants without distinction, when, on its territory, there are two doctors whose practices are regular and permanent? Negative answer. The local Council has exceeded its powers.

HAVING SEEN the request submitted by Messieurs Casanova, Canazzi . . . asking that it please the Council to annul: (1) a resolution dated 4 November 1897 whereby the Olmeto local council voted a credit of 2,000 francs for the stipend of a doctor who was to provide medical services to all the inhabitants of the commune, rich and poor alike; (2) an order of the Prefect of Corsica dated the 15 November refusing to declare void the aforementioned resolution and approving the opening of the credit over and above the commune budget;

And doing so although the challenged resolution, whose effect will be to raise the cost of medical services from 161 francs to 2,000 francs, had no aim other than to create a sinecure for a protégé of the local council;

that it infringes the vested rights and the freedom of citizens in making them contribute to the stipend of the municipal doctor, even if they decline to avail themselves of his services, and in taking from the indigent ill the right to choose their own doctor;

that it is not authorized by the need to ensure compliance with the Act of 15 July 1893;

that in fact the two doctors practicing in the commune have undertaken to provide free treatment for those lawfully designated as the indigent ill;

that, as the Act of 15 July 1893 laid down the conditions for the allocation of the costs of free medical treatment between the State, the Department and the communes, the local council could not validly decide that the stipend of the health service doctor should be borne entirely by the commune; that since this expense was not mandatory, the extra centimes on whose yield it would be funded, could not, under article 133 of the Act of 5 April 1884, be levied by order of the prefect, but required a decree;

Having seen the comments of the Minister of the Interior . . . arguing for rejection of the request on the grounds that, if the Act of 15 July 1893 obliged communes to provide health care for those without means, this did not preclude the allocation to a doctor, to induce him to reside locally, of a stipend fixed on the basis that the doctor would treat all the inhabitants, rich and poor, without distinction; and furthermore that the local council’s resolution of 4 November 1897 did not vote any levy, and that the Prefect’s endorsement dealt only with the opening of a credit line of 2,000 francs; that thus the petitioners are wrong to criticize from this standpoint the acts they challenge; that if the commune was led to vote a levy in order to meet the expenditure, such a levy could be effectively imposed only under a decree, and thus, if the levy were collected improperly, then - but only then - could taxpayers require the discharge of the additional centimes improperly levied;

Having seen the Acts of 5 April 1884 and 15 July 1893;

On the plea in bar based on the lack of standing of the petitioners other than Mr Canazzi, medical practitioner at Olmeto;
Considering that the object of the challenged resolution is to insert an item of expenditure in the budget of the commune of Olmeto; that the petitioners, who are taxpayers in that commune, have, as such, sufficient interest to have the resolution declared void in law, and are thus interested parties within the meaning of article 65 of the above mentioned Act of 5 April 1884;

On the merits: Considering that the challenged resolution was not adopted in order, in conformity with the Act of 15 July 1893, to organize free medical care for the indigent; that, if local councils may, in exceptional circumstances, act to ensure the provision of medical care for inhabitants in need thereof, it is clear from the proceedings that no such circumstance obtained in Olmeto, where two doctors were in practice; that it follows therefrom that the local council exceeded its powers when the challenged resolution allocated a yearly stipend of 2,000 francs to a local authority doctor employed to treat free of charge all inhabitants, rich and poor indiscriminately, and that the Prefect was wrong in approving that resolution, (The resolution is declared legally void at, in consequence, the order of the Prefect of Corsica dated 15 November 1897 is annulled.)

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