Page:EB1922 - Volume 30.djvu/387

Rh

the law of Oct. i igig (on the form of the State) the frontiers of the State were legally defined in accordance with the pro- visions of the treaty, i.e. the Territories assigned to the other " succession states " were cut off. In these Territories there lived, in a solid group, nearly half as many Germans as the treaty had left to German-Austria, now sadly diminished. The name of the State, which had hitherto been German-Austria (Denlsch- ostcrrcich), was legally altered to " the Republic of Austria " (Rcpublik Oesterreich), for it was only under this name that German-Austria could obtain international recognition. The sentence " German-Austria is a constituent part of the German Reich," which had hitherto been embodied in the constitution but had represented an aspiration rather than a fact, was now excised, in accordance with Art. 88 of the Treaty of St. Germain, which decreed the " independence " of German-Austria.

Of the remaining provisions of the treaty affecting the constitution of German-Austria, attention need only be called to those dealing with the protection of minorities, which did not, however, add anything essential to the safeguards for nationality and creed secured by the old Austrian fundamental law of Dec. 21 1867 on the general rights of citizens of the State, which had been adopted in the German-Austrian constitution.

The Federal Constitution. It was only under the greatest possible political difficulties that the Constituent Assembly could be brought to fulfil its proper function, that of framing a definitive constitution. From the very first the Federal character of this constitution was above all determined by the fact that this was the only possible way of overcoming the ever-increasing tension between the Territories and the State as a whole. More- over, the provisional constitution had already contained certain Federal elements, and these had now to be developed in order to give the Territories, constitutionally as well as in fact, the position which they claimed.

From the point of view of technical organization a Federal State may exhibit one of two types of character. In one the legislative and executive power may be divided between a central legislature and executive, whose activity constitutionally covers the whole State, and a number of local legislatures and executives, with jurisdiction over territorial subdivisions of the State, which are known as subordinate states. In the other, the legis- latures and executives of the subordinate states may share the legislative and executive powers of the organs of the central State. The first of these types was already exhibited in the provisional constitution of German-Austria. To make the con- stitution of the Federal State complete, the Austrian Republic really only needed to give the subordinate states, i.e. the so- called Territories (Lander), a share in the legislative and exec- utive powers of the central organs of the federation or super- state. The federal constitution created by the law of Oct. i 1920, however, was not confined to completing the provisional constitution by adding provisions to this effect; it was an effort at a complete reconstruction of the State, in which an attempt was made to balance the strengthening of the federalistic elements by an equivalent elaboration of a centralized legal jurisdiction over legislative and executive acts.

The division of legislative and executive functions between the super-state, known as the Federation (Bund), and the sub- ordinate states, known as Territories (Lander), resulted in the classification of affairs into four groups. With regard to the first group, which embraced the most important functions of the State e.g. civil and criminal law, jurisdiction, foreign relations, etc. legislative and executive powers are reserved wholly to the Federation, the Territories being completely excluded. In the case of the second group, the Federation alone has the power to make laws, but their execution is the affair of the Territories. In the case of the third group, the Federation has the power of legislation in so far as it may lay down general principles, but it is for the Territories to give these principles practical effect in laws and to see to their execution. All matters which do not fall under one or other of these groups constitute the fourth group, which is wholly within the legislative and executive province of the Territories.

The legislative organ of the Federation is the National Council (Nationalral), of which the composition is the same as that of the National Assembly under the provisional constitution, and the Federal Council (Bundesrat). In the Federal Council the individual Territories are represented in proportion to the number of citizens customarily domiciled in them, a principle differing from that of Switzerland and the United States, where, in the Staatenhaus and Senate respectively, the subordinate states have an equal voice whatever their size, but approximat- ing to the constitution of the German Reich, under which the subordinate states were from the first represented in thi Bundesral, as later in the Reichsrat, according to their size. According to the Austrian constitution, however, the repre- sentation of the Territories in the Bundesral is by no means strictly proportional. The largest Territory sends 12 repre- sentatives, the rest in proportion to the number of their citizens; but no Territory sends less than three representatives, although the three smallest Territories Tirol, Salzburg and Carinthia would not be entitled to so many were the principle of propor- tional representation strictly carried out. In order to correct the disproportion between Lower Austria, with its population of some 3,000,000, and the smaller Territories, whose population does not exceed 140,000 and 400,000, the Territory of Lower Austria was divided into two parts the Federal capital, Vienna, and the Territory of Lower Austria. Vienna, with its 1,800,000 inhabitants, is the largest subordinate state.

As the Federal Council is fundamentally concerned only with legislation, and only in very exceptional cases with executive affairs, its members are deputed not by the Governments of the Territories but by the legislative bodies, which are again styled Landtage (Territorial Diets), and they are elected on the system of proportional representation. As a legislative organ the Federal Council is in no way placed on an equality with the National Council; it has a suspensive veto, but if the National Council again passes a bill thus vetoed, it becomes law ipso facto. A further alteration of the legislative machinery estab- lished by the provisional constitution was the introduction of the constitutional referendum and of the right of popular initiative.

The executive power of the Federation is exercised by the Federal Government, whose members are called Federal ministers and meet under the presidency of the Federal chancellor or vice- chancellor; they are assisted in their several departments by secretaries of State. The Cabinet is composed in the same way as under the provisional constitution election by the National Council on the recommendation of the Principal Committee. An important alteration in the provisional constitution was that the executive functions hitherto assigned to the president of the National Assembly were transferred to a special head of the State, the Federal president, elected for one year by the National Council and Federal Council meeting in joint session under the name of Federal Assembly. To this Federal Assembly the president is responsible.

The executive powers of the Federation are exercised in the Territories by Federal organs subordinated to the Federal Govern- ment, or, as a general rule, by the organs of the Territorial Government in the sphere of activity devolved upon them. In the latter case the Territories function as organs of the Federation and are subordinate to it. For this reason the Federation is interested in the constitutions of the Territories, and the Federal constitution therefore contains far-reaching provisions as to the organization of the Territories, and it is only within the limits of these provisions that the Territories are free to settle their own constitutions. So far as their legislatures are concerned, the Federal constitution prescribes the single- chamber system for the Diets, as now established, and their elec- j tion on the same franchise basis as the National Council. The Territorial Government is to be elected by the Diet, and is to consist of the Landeshauptmann and a number of other members. In respect of the spheres of Federal activity assigned to the Territories by devolution from the Federal Government that is to say, those in which the Territories act as the organs of this Government it is the Landeshaupimann and his subordinate3