In his play “Reigen”, Arthur Schnitzler gave centre stage to eroticism and sex – not explicitly, but in dialogues that left no doubt. In the atmosphere prevailing in Germany and Austria in the early 1920s, the play caused a scandal that even led to the involvement of the Constitutional Court in Vienna. However, the Court was not called upon to act as a guardian of public morals; rather, it had to decide on a procedural issue: Was the instruction given by the (Conservative) federal government to the (Social-Democratic) mayor and provincial governor of Vienna, Jakob Reumann, to ban the performance formally correct? The Constitutional Court said it was not, and in its decision of 26 April 1921 (VfSlg 8/1921) acquitted Mayor Reumann.
The Constitutional Court had to review three “letters” by the Federal Minister of the Interior and Education for their character as a binding instruction. The first letter to Reumann was worded in such a way that it was clearly to be interpreted as a mere request; the second one was addressed not to the governor of the province, but rather to a department of the municipal administration, and in the third letter, correctly addressed, the Federal Minister’s signature, which was indispensable for a binding instruction, was missing.
The case against Reumann was one of the very rare cases brought before the Constitutional Court pursuant to Article 142 of the Federal Constitutional Law. This article regulates the scope of responsibility of government ministers (quote: “the constitutional responsibility of the highest federal and provincial authorities for contraventions of the law”.) There have been two other such cases: one also concerning Reumann (1923, Vienna Crematorium), the other concerning Wilfried Haslauer (1985), then Governor of the Province of Salzburg, in the controversy over shop opening hours (see the respective website entries).
The legal significance of the 1921 decision was due, inter alia, to the question of which procedural rules were to be followed. The case preceded the adoption of the Constitutional Court Act (Federal Law Gazette 1921/364). Pursuant to section 40 of the Transitional Constitutional Law of 1920 (State Law Gazette 1920/451 = Federal Law Gazette 1920/2), the procedural rules of the Reichsgericht (Imperial Court of Justice) would have been applicable, but its powers did not extend to litigation between state bodies. Therefore, the Court based its decision on the Act on Ministerial Responsibility of 25 July 1867 (Imperial Law Gazette 1867/101).
