
    The State of Ohio v. Boone.
    
      Requirement that physicians and midwives certify certain facts— In act establishing bureau of vital statistics — pp O. L., 296 — Is unconstitutional and void.
    
    The requirement that physicians and midwives shall certify items numbered 5, 6, 7, 8, 9, 10, 11, 12, 13, IS, 16, 17 and 18, in section 14 of “An act to establish a bureau of vital statistics and to provide for the prompt and permanent registration of all births and deaths within the state of Ohio,” (99 O. L., 296), is an unwarranted and unreasonable exercise of police power; and for the reason that sections 13, 14, 17 and 21, of said act, require a certificate of all items mentioned in said section 14 and recognize no other certificate as complete and proper, each and all of said sections, so far as they apply to physicians and midwives, are unconstitutional and void.
    (No. 12846 —
    Decided January 16, 1912.)
    Error to the Circuit Court of Hardin county.
    On Rehearing.
    
      Mr. Timothy S. Hogan, attorney-general; Mr. Fred. H. Kirtley and Mr. James R. Stillings, prosecuting attorney, for plaintiff in error.
    
      
      Mr. George E. Crane, for defendant in error.
   Davis, C. J.

This case is fully reported with opinion in 84 Ohio St., 346. A motion for rehearing was entertained because of an uncertainty, which seemed to exist to some extent, as to the scope of the syllabus in the former report: There is no ambiguity in the opinion; but since, by a rule of this court, the syllabus must be confined to the points of law arising from the facts of the case and which have been determined by the court, and since the syllabus is the expression of all the concurring judges, doubt seems to have arisen whether the syllabus and the opinion were in harmony.

Whether a physician or midwife might or might not be required by a proper statute to report a birth at which he or she had attended, was not a point considered or decided; because it was not disputed and was expressly conceded by the defendant in error, as expressly stated in the opinion. But, although this much was conceded to be true, it was argued, and so held by the court, that paragraphs or items numbered 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17 and 18, in Section 14 of “An act to establish a bureau of vital statistics and to provide for the prompt and permanent registration of all births and deaths occurring within the state of Ohio” (99 O. L., 296), were an unwarranted and unreasonable exercise of police power ; and that these items are so interlaced and interwoven into the texture of Sections 13, 14, 17 and 21, of said act, as to render each entire section unconstitutional and void, so far as they relate to physicians and midwives, Section 13 making it the duty of the attending physician or midwife to file a certificate of birth giving all of the particulars required by the act, Section 14 for the same reason, Section 17 making it the duty of the state registrar to prepare blanks and issue detailed instructions to carry out the purposes of the act, and providing that no other blanks shall be used, and Section 21 making it a penal offense for neglect or refusal to file “a proper certificate,” the definition of a proper certificate being fixed by Sections 13, 14, and 17.

For the reason, therefore, that the objectionable items of Section 14 are expressly required by all of the sections mentioned above to be joined with those conceded to be sound, the court could not separate the former from the latter and declare part of the sections valid. The legislature may rectify its error by future enactment.

The judgment of the circuit court reversing the judgment of the court of common pleas is affirmed, on the ground that the demurrer to the indictment ought to have been sustained, and

Defendant discharged.

Shauck, Price, Johnson and Donahue, JJ., concur.

Spear, J.,

dissenting. I am in accord with that part of the majority opinion given upon the rehearing wherein it is held with emphasis, as was foreshadowed in the opinion given when the case was first reported, to the effect that the general assembly has power to require physicians to certify to the proper board such information respecting births and deaths as, speaking in general terms, will naturally come within the knowledge or observation of an attending physician. This upon the ground that the physician is licensed by the state, sections 1269 to 1295, General Code. This requirement is, therefore, not unreasonable, and it is hornbook knowledge that where special privileges are accorded by the state special duties in connection therewith may be exacted without awarding money compensation therefor.

But I dissent from the holding on the rehearing which will have the effect to destroy the act utterly. This judgment is put upon the ground that the provisions of the act which were within the power of the general assembly to enact are so interwoven with those admittedly invalid as to make the whole invalid. This is a holding that the general assembly would not have passed the portions of the act which it is now admitted that body had power to pass without including the provisions which are condemned. In other words, a hungry man presumably would reject a half a loaf unless he were offered a whole loaf. I. can find no such legislative purpose in the words or object of the act. The universal rule is that a part of a law may be unconstitutional while there is no such objection to the remaining parts, and in such case all of the law stands except the part which is unconstitutional. The use of the word “all” in section 13, and perhaps elsewhere in the act, purporting to require the physician to certify all the matters purporting to be required by the act generally is not controlling; nor should it create doubt as to other portions of the act. Necessarily and reasonably, the “all” should be held to mean all those matters which the general assembly has the power to require to be certified, and the “proper certificate” required to be filed by the provisions of section 21, would naturally mean such certificate as the board has legal power to require, its power in that respect being now defined by the judgment of the court.

This view of the act does not affect the defendant in the case. He was properly ordered discharged by this court. The discharge may well rest upon the ground that the evidence adduced at the trial was insufficient to justify a verdict and judgment against him.  