The trial of "Ponpon"

At no time had the courtroom of our Justice of the Peace - the former dining room of the Hôtel des Ancres d'Or - seen the crowd that was caused there on Thursday by the announcement of the debates relating to the trial of Dachary, known as "Ponpon", the candy merchant and his employee Cledière. Not only was this room packed to the rafters but also a crowd of people were listening from the windows of the Čour and the Rue, under the peristyle and even in the staircase of the town hall.
Two very distinct feelings had brought this crowd there: curiosity, of course, the curiosity that our previous articles had aroused to the highest degree but, in addition, a testimony of sympathy and solidarity comfort for the victim of a municipal decree disapproved by everyone. The injustice of the prosecutions exercised by virtue of this ukase had been unanimously felt by those who are usually most indifferent to the misfortunes of others. Not only was Ponpon sympathetic, not only was Ponpon "popular", but everyone had felt affected with him, everyone feared that one day or another they would also fall under the blow of some abusive and vexatious regulation of the same kind.
The public has, in general, only a rather confused feeling of the law. Nevertheless, in this very special case, it immediately appeared that the regulatory power had exceeded the limits of simple regulation to reach the point where it is a challenge to our fundamental freedoms: freedom of movement, freedom of trade and industry, etc.

We had come, of course, to take pleasure in listening to the plea of ​​a brilliant lawyer, but also to protest against an arbitrary and unpopular measure which we expected the defender to make a scathing criticism and the judge to do justice.

The trial began with the hearing of the witnesses of the Public Prosecutor, the guard Davias and the security agent Dufau. The first testified in a manner entirely favorable to the defense's theory by acknowledging that Cledière, on the day the report was made to him, was not parking, but was driving around selling barley sugars. Furthermore, Mr. Auschitzky had the witness say that never before 1924 had fines of the kind of the one that Ponpon was the victim of been issued. Officer Dufau also acknowledged this fact, but claimed that in 1922 or 1923, bathers had complained about the importunity of candy sellers, which is the first news.

It was with reverence that the magnificent argument of Mr. Auschitzky was then listened to, which began with the filing of detailed and abundantly motivated conclusions.

With remarkable art and relevance, the eloquent speaker demonstrated brilliantly that the municipal decree that served as the basis for the prosecution was completely void in form. It lacks the approval of the prefect or, at least, proof, by the production of a receipt of deposit at the Prefecture, that this official was able to approve or cancel it according to the requirements of article 95 of the law of April 5, 1884, which otherwise denies it any enforceable character. It also lacks proof, by a report, according to the requirements of article 96, of its publication and posting. Finally, as it is signed by Mr. Eyssartier, then first deputy, it lacks either the observation of the absence of the mayor at the time, or his delegation if the order was taken with this mayor being present.

That is not all: Mr. Auschitzky has shown texts and case law in hand that the mayor, by taking such an order in the sense attributed to him, had gone beyond the circle of his attributions and the limit of his territorial competence.

Indeed, from the point of view of attributions, article 97 of the aforementioned law only gives municipal magistrates a police power with the aim of "ensuring good order, public safety and health. To suppress the circulation of an entire category of citizens, to prohibit this or that trade is to exceed the limits of this article significantly.

Will it be said that the best way to bring order to a gathering of any individuals consists in preventing them from meeting and that the true remedy for abuse lies in prohibiting use?

That would be as simple as it would be concise; the abuse of regulation would thus respond to the abuse of exploitation and of these two abuses it would be difficult to say which is the most regrettable.

It is inconceivable for small street vendors to be absolutely forbidden in the name of the order that they have never disturbed by coming to sell on the beach.
Such ostracism would recall the worst days of the Doges of Venice or the tyrants of Syracuse... This is all the more true, said the eminent lawyer, since the real goal, the secret goal of the regulation was in no way to ensure order. Order is here only a pretext. It was a question, by keeping the sellers of barley sugar or other sweets away from the beach, of offering a free field to the trader who sells them under the halo of the municipal kiosk. And Mr. Auschitzky said that this was called a misuse of powers, that it contributed to rendering null and void in the application this old corpse of a regulation stillborn in 1920, buried for four years in a tomb and dug up in 1924 for a reprehensible use.

Moreover, was the decree valid, he concluded, it would be inapplicable. It only prohibits street vendors "from parking and exercising their industry" on the beach. There is their industry and not their trade. How could the two things be confused? Blind who does not want to see and deaf who does not want to hear! Ponpon did not park, Ponpon did not manufacture, but only sold his barley sugars on the beach. However, the author of the decree, Mr. Eyssartier, in a statement published here and not denied, stated that the text was aimed at photographers who had set up their laboratories by the sea and Arabs who spread their carpets on the sand.

How far we are from the mark! At the end of the conclusions that he filed, and which abound in citations of case law, Mr. Auschitzky asked, moreover, that in case there was any doubt, Mr. Eyssartier be heard.

The Police Commissioner spoke last. He tried to exonerate the owner of the municipal kiosk. The authorization that she herself had requested, it seems, to go and sell on the beach, having been refused to her as to the others, he sees this as proof that this trader was not the object of preferential treatment as is claimed. He argued that the municipal decree, being from 1920, could not have targeted the municipal kiosk which did not exist at the time. He requested a period of 15 days to verify whether the said decree was really not accompanied by the essential documents. The judgment was postponed for a fortnight.