Opinion of the Court. police power is not final or conclusive, but is subject to the supervision of the courts." Lawton v. Steele, 152 U. S., 133. See also numerous cases cited in 22 Am. & Eng. Enc. Law (2 ed.), 939. We need not inquire whether the state may not require a physician or midwife to report to the proper authority, for registration, the fact of a birth which has come under his or her observation, first, because it is conceded that it may do so, and, second, because it obviously has some relation to the public welfare and it can not be very burdensome to comply with such regulation. But this statute goes much further. It imposes upon the physician or midwife the duty of investigating and certifying as to certain facts which would not necessarily or naturally come within the knowledge of the attending physician or midwife, viz: whether the birth was legitimate or illegitimate, and, except in case of illegitimacy, the full name, residence, color or race, birthplace, age and occupation of the father; also the maiden name in full, residence, color or race, birthplace, age and occupation of the mother; likewise the number of this child of the mother, and the number of living Ichildren of the mother. It is further provided that no certificate shall be held to be complete and correct which does not supply all of the items of information called for therein, or satisfactorily account for their omission; and that the physician or midwife who shall neglect or refuse to file a proper certificate of birth with the local registrar, within the time required by the act shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined, etc. In short, a professional Opinion of the Court. attendant at a birth is required to enter upon an inquiry as to non-professional questions, to supply information to, it may be, a non-professional official, "clothed with a little brief authority," in relation to matters which perhaps are interesting as vital statistics, but as to which it requires more than appears in this statute or in the arguments in this case, to show that they are necessary or even closely related to the public safety, the public morals or the public welfare: an inquiry too which could be just as well and more appropriately conducted, reported upon and certified to, by the local registrar, or a township assessor, or a census taker. The physician or midwife is compelled, under the penalties of the statute, to institute and carry out the necessary investigation and to "supply all of the information called for" without compensation. The contention is made on the part of the state that statutes which impose the duty of making such report or certificate are not unconstitutional because they do not provide for compensation to physicians. While we do not regard this point as decisive of the present case, yet we are not prepared to yield unqualified assent to the proposition thus broadly stated. None of the cases cited for the state in that connection appears to have been carefully considered, except State v. Warden, 56 Conn., 216. In one of them indeed, Robinson, Clerk, v. Hamilton, 60 Ia., 134, it is frankly said: "We have not been favored with an argument on behalf of the defendant, and are, therefore, not informed of the grounds upon which the statute in question was assailed in the court below and is claimed to be unconstitutional. It cannot be Opinion of the Court. expected that we shall consider arguments of which we have not heard, or that we will imagine objections and discuss them.” Besides the case does not seem to go further than the defendant in this case concedes the law to be. The Connecticut case referred to, after a statement of the guaranties of personal liberty contained in the Constitution of the United States, contains the following language: "But these provisions place no limitation upon the power of the legislature of this state to require gratuitous service from one member of the community in the protection of the lives of all, other than that which would have been equally upon it in their absence, namely, that it shall not violate fundamental principles and purposes of the social compact." This language should be read in the light of the facts of that case; but, assuming that it correctly states the law in its general application, there is grave reason to doubt whether it is sound law in this jurisdiction, owing to specific provisions of the Ordinance of 1787. The purview of that famous act of congress is expressly "for the government of the territory of the United States northwest of the river Ohio." The first twelve sections of the ordinance obviously provided for the temporary government of the territory until it should be divided and organized into states. Then follows something of more enduring interest. We quote. "And for extending the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their laws and constitutions, are erected; to fix and establish those principles as the basis of all laws, constitutions, and governments, which forever hereafter shall be Opinion of the Court. formed in the said territory; to provide, also, for the establishment of states, and permanent government therein, and for their admission to a share in the federal councils on an equal footing with. the original states, at as early periods as may be consistent with the general interest: It is hereby ordained and declared, by the authority aforesaid, that the following articles shall be considered as articles of compact, between the original states and the people and states in the said territory, and forever remain unalterable, unless by common consent, to-wit:" Then follow the several articles of compact. We quote from only two of them. It is provided in Article II that, "No man shall be deprived of his liberty or property, but by the judgment of his peers, or the law of the land, and should the public exigencies make it necessary, for the common preservation, to take any person's property, or to demand his particular services, full compensation shall be made for the same." Perhaps it may be said that the adoption of a constitution by the people of Ohio superseded the Ordinance of 1787, and that the constitution of Ohio contains no such provision as that which we have quoted from Article II of the Ordinance of 1787. We recur again to the "articles of compact" and quote from Article V: "And whenever any of the said states shall have sixty thousand free inhabitants therein, such state shall be admitted, by its delegates, into the Congress of the United States, on an equal footing with the original states, in all respects whatever: Provided, The constitution and government, so to be formed, shall be republican, and in conformity to the principles contained in these articles." If our constitution, in Opinion of the Court. stead of creating a republican form of government for the state, had provided a pure democracy, a government directly by the people, and, so framed, it had been accepted by the president and congress of the United States, there might have been some reason for the claim that, in that respect, the compact which was to "remain forever unaltered, unless by common consent" had been repealed by implication; yet even under such circumstances a conclusive presumption would not be raised that the compact had been altered, without the common consent of all the parties thereto. But if the convention which prepared our constitution had omitted from the Bill of Rights, the famous interdiction against slavery, contained in Article VI of the ordinance, would that have justified the conclusion that the compact was altered and that the existence of slavery in Ohio would be constitutional? Or, to put the question in another form, if our constitution contained nothing whatever in regard to the privilege of the writ of habeas corpus, or to trial by jury, or to proportional representation of the people in the legislature, or to the prohibition of cruel and unusual punishments, it could not be justly inferred that the great compact had been altered and that these privileges and guaranties had been subtracted from the rights of the citizens, and were not included among the rights reserved by the people (Const. of Ohio, Art. I., Sec. 20); because there would have been nothing in the constitution which was inconsistent with the ordinance and the declared purpose thereof "to fix and establish those principles as the basis of all laws, constitutions, and governments, which forever hereafter shall be formed in the said terri |