In 1922, the construction of the crematorium at the Vienna Central Cemetery led to a conflict between the federal government and the government of the Province of Vienna: At that time, the Catholic church and clerical circles were strictly opposed to cremation, whereas the Social-Democratic Party took the opposite position. Federal Minister of Social Welfare Richard Schmitz of the Christian-Social Party therefore tried to prevent the start-up of the crematorium by way of an instruction given to Jakob Reumann, the Social-Democratic mayor of the City of Vienna and governor of the Province of Vienna. However, Mayor Reumann refused to follow the instruction. The federal government called upon the Constitutional Court pursuant to Article 142 of the Federal Constitutional Law, requesting clarification as to whether the matter of cremation was subject to indirect federal administration or to provincial administration. In its decision of 27 March 1923 (VfSlg 206/1923), the Constitutional Court ruled in favour of Mayor Reumann.
The Constitutional Court decided that the matter was within the jurisdiction of the federal government and that the governor of the province was therefore bound to follow instructions issued by the federal minister. At the same time, however, the Court stated that the division of power in this field – with the provisions of the 1867 Imperial Constitution being in force until 1925 – was extremely complicated. In the Court’s opinion, the governor of the province, due to this lack of clarity, had erroneously assumed that the matter was within the jurisdiction of the province and had therefore not followed the instruction. He therefore had to be acquitted on account of this excusable legal error.
