DROIT ADMINISTRATIF. French administrative law may be described as that section of law which establishes the dif ferent administrative organs of the State and defines their powers as regards individuals. It will thus be noticed at once that there is a very close connection between French constitutional and administrative law since in the former the general plan of the operation of the powers inherent in the State is set out whereas in the latter the various organizations by which these powers are enforced are detailed, or—in another phrase—in constitutional law are to be found the principles whose application is enacted through the channels of administrative law.
France is for administrative purposes divided into "departe ments" which are subdivided into "arrondissements." The latter are again subdivided into "cantons" with a further subdivision into "communes." These different administrative divisions are not, however, of equal importance. The "departements" and the "communes" are at the same time electoral constituencies, admin istrative units and so-called "personnes morales." The "arron dissements" are neither "personnes morales" nor administrative units. The "cantons" are neither legal nor administrative units although they elect a councillor to the conseil general and to the conseil d'arrondissement. The "communes" form an administra tive centre of great activity.
"Droit administratif" is, therefore, concerned with the general interests of the State, the regional interests of the "departements" and the local interests of the "communes," although for reasons of economy it is often enforced by the same agents as in the case of the "prefer of a "departement" who is at the same time an agent of the State and of the "departement." There are several classes of administrative organs, the author ities entrusted with the execution of administrative decisions ("pre lets" and "sous-prefets"), mayors, deliberative councils, which must be subdivided into deliberative councils proper, namely, those who have power to take executive decisions (conseil general, conseil d'arrondissement and conseil municipal) and consulting councils (conseil de prefecture, conseil d'etat), and finally admin istrative tribunals entrusted with jurisdiction.
The acts of administrative authority are fundamentally divided into two classes, acts of authority proper or, as they are some times called, unilateral administrative acts, by means of which the administration orders or prohibits some action by the subject of its administration, as for instance the order of a mayor pro hibiting processions in the territory of his commune, and acts of administration proper by means of which the administrative authorities ensure the safeguard of the property of "personnes morales administratives" and enforce contracts, the nature of these acts being from a legal point of view the same as those of a private citizen. Appeals against acts of so-called authority proper are, however, within the jurisdiction of the administrative tribu nals, whereas disputes arising out of acts of so-called administra tion proper are tried before the ordinary judicial tribunals.
Acts of authority proper are subdivided into "actes individuels" and "actes reglementaires." "Actes individuels" are those con cerning a particular individual in connection with a defined object. "Actes reglementaires" are those by which the administrative authority imposes certain restrictions on a body of individuals. The right to do "actes reglementaires" is entrusted as regards the whole State to the president of the republic, as regards the "de partements" to the "prefets" and as regards the "communes" to the mayors. This subdivision of acts of authority proper is im portant as regards jurisdiction, for only "actes individuels" can be appealed against before the ordinary administrative tribunals. The sole means of attacking an "acte reglementaire" is before the conseil d'etat which may order it to be cancelled as ultra vires.
Private individuals are protected against officials by their power of prosecution before the Criminal Courts in certain cases (Art. 166-195, Crim. Code) and their right of bringing an action before the ordinary judicial tribunals where an official is personally liable, as the responsibility for acts done by an official is only assumed by the administration in cases where the fault is inherent in the serv ice, and thirdly by appeal to the administrative tribunals.
It is true that in case of tort French citizens can only sue officials of the State in their official capacity in the ordinary courts when the act complained of is alleged to have been com mitted "with malice," and that in the absence of "malice" the private citizen must seek his remedy before an administrative tribunal. It is, however, interesting to compare generally the rights of a French citizen with those of a British subject who, in dealing with State officials or civil servants, finds that he is, in many cases, powerless owing to the immunity these persons enjoy as regards the consequences of acts done in their official capacity. French Administrative Law may be said to be based on the recognition of the fact that the State, regarded as a "personne morale," has two distinct entities, and that in its politic capacity it is a "person" who is responsible for the torts of its servants as well as for con tracts made by them on its behalf, and that consequently it may be sued, if not in the ordinary courts, before the administrative tribunal whose existence consequently constitutes a protection for the subject against arbitrary decisions of individuals acting officially, whereas English jurisprudence, as already stated, regards acts done by officials or servants of the Crown still on the mediae val assumption that as "the king can do no wrong" and "the State is the king," it is not responsible for the torts of its servants. This comparison between the English and French system of juris prudence may be further emphasized by a consideration of the fact that the French administrative tribunals are real tribunals, acting independently of the executive, whose functions and powers are defined in the Code Administratif, whereas under the English rule of law Government departments often exercise in camera, and without an oral hearing of the applicant, semi-judicial func tions under Statutory Powers which, in practice, confer on them the power of judging their own cause without appeal.
Only cases in which a definite right has been violated can be heard before the administrative tribunals ; where private interests only are concerned appeal can be made only to representatives of the administration, following the hierarchical order upwards. As regards the cases which come before the administrative tribunals these are divided into four classes : first, those in which the tribunal examines the matter as regards both law and fact, and decides if a decision is to be upheld or replaced by another; secondly, those in which the tribunal has to decide if any adminis trative act was ultra vires, in which case it quashes the decision; thirdly, those in which the tribunal is called upon to interpret the scope and intention of an administrative act ; and, fourthly, those in which the tribunal has power to impose a penalty in cases where public property has been encroached upon, or a legal usufruct of public utility unobserved. It must be noticed that this last class of case constitutes an infraction of the rule that every illegal act of any kind, the commission of which entails a penalty, falls within the provisions of the Penal Code and must be tried before the ordinary judicial tribunals.
The fundamental principle of the separation of the judicial and administrative authorities was enacted by the law of Aug. 24, 1790, sec. 2 Art. 13 which enacts that the judges may not in any way interfere with the operations of the administrative corps, or summon before them administrators to answer for acts done in ,carrying out their proper duties. This principle has been so far developed that if during the course of an action before the ordi nary judicial tribunals a question arises which might prejudice a decision of the administrative tribunals, the hearing must be sus pended pending a decision by the latter. In cases, however, of "expropriation" on grounds of public utility, in which a decision must be given by the judicial tribunal, the latter may refuse to make an order if all the legal formalities required have not been duly carried out by the administrative authorities.
Finally certain matters which should, according to their nature, be brought before the judicial tribunals have by law been allotted to administrative tribunals, e.g., questions arising out of the con tracting for public works, the sale of any part of the national domain and the declaration of the State as a debtor.
Administrative tribunals are divided into tribunals of first instance and those of appeal. The mayor and the council of the prefecture always constitute tribunals of first instance. The "pre lets" and the competent minister constitute sometimes tribunals of first instance and sometimes tribunals of appeal. The conseil d'etat is in principle an appeal tribunal, although in certain cases it is a court of first and last instance, and even a court of cassation. The cour des comptes except in one instance is a court of first and last instance. These tribunals are also subdivided into tribunals competent to hear and determine all matters which have not been specially reserved, and special tribunals for the trial of the latter class of cases.
Ordinary tribunals are in the first instance that of the compe tent minister and in the second instance the conseil d'etat. Special tribunals for the hearing of general cases are the council of the prefecture, the "prefet," the "sub prefet" and the mayor.
Special tribunals with special functions are those of the cour des comptes, the maritime prefects, the council of public instruc tion, the tribunals with jurisdiction concerning the issue of coinage, that of the sanitary police, that for excess values and that for the colonies.
Administrative judges are removable, with the exception of those of the tour des corptes. (F. No.)