Concurring Opinion.
Myers, C. J.I was not able to participate in the original decision in this cause to the extent of examining the authorities, but on the petition for a rehearing I have examined the questions presented. ,
I concur in the conclusion reached in the case by the majority of the court, but I base my conclusion upon different grounds. I am unable to assent to the proposition that a debt existed in the ordinary acceptation, but it seems to me that a moral obligation, based upon a prior legal demand, is shown, by the preamble and body of the act, to have ex*364isted in favor of Vincennes University, prior to the adoption of the present Constitution. At least, a department of the government, presumably as intelligent and imbued with as high a sense of duty and justice as this department, has so declared.
It is hardly conceivable that in the adoption of the Constitution it was intended that, by virtue of its sovereignty, the State should by its fiat absolve itself from its existing moral obligations, and its duty of honesty toward all its citizens, or that mere sovereignty should absolve a state from the principles of common honesty. Through the various acts that have been passed, the university has been forced to accept what the State has offered, owing to its inability to enforce a demand against a sovereignty further than the latter consents. In other words, in the various acts the State has exercised its sovereignty in giving or withholding, as it saw fit, so that the question of satisfaction by the permissive action and former payments could go no further, as matters of law, than to operate as an acknowledgment of the moral obligation. If then a moral obligation existed, as the legislature has found, it existed as much as a debt, at one time enforceable, but which, by operation of some statute of limitations, or by virtue of bankruptcy, had become unenforceable. Its payment, or the promise to pay, is not the payment of, or the promise to pay, a new debt, but a former debt. The prior legal obligation furnishes the consideration for the promise, for the promise itself is not sufficient. It is provided by article 4, §24, of the Constitution that “ provision may be made, by general law, for bringing suit against the State, as to all liabilities originating after the adoption of this Constitution; but no special act authorizing such suit to be brought, or making compensation to any person claiming damages against the State, shall ever be passed.” The rule is, that constitutions shall operate prospectively. This provision evidently means that no special act shall ever be passed, *365authorizing suit against the State, or making compensation to any person claiming damages for liabilities originating after the adoption of the Constitution, but that any law that may be passed as applying to such cases must be a general law. Prior to the enabling act of 1889 (Acts 1889 p. 265, §1419 Burns 1901), no suit against the State could be maintained, and it is held under that act that it is restricted to the classes of claims defined by the act, so that the claim of the university could not fall within that statute, and there was no other authority except the enabling act of 1846, under which any action could have been maintained, and that act was restrictive. So that construing article 4, §24, with article 10, §5, providing that “no law shall authorize any debt to be contracted on behalf of the State,” evidently means any debt created or arising after the adoption of the Constitution, in the sense of debts as generally understood, and not to the discharge of moral obligations existing prior to the adoption of the Constitution, as to which the State is as free as an individual would be. The legislature having found that such moral obligation did exist, puts the matter beyond the inquiry of the courts. The moral obligation existed, or it did not. If it did, it existed irrespective of whether it was enforceable or not, and the present action is no more the creation or contracting of a debt than a promissory note given for an uncollectible demand is the creation or contracting of a debt. It is putting it in an enforceable form, precisely as in case of a promissory note — an acknowledgment of the obligation. Suppose a defense were interposed against the bonds, that they were without consideration; a reply of the moral obligation arising from the previous legal demand would be sufficient, and would furnish the sole consideration. They would not, and could not, be based on any other consideration which would not be a nudum pactum. If the State had the right, or the power, or was under obligation originally, express or implied, to reimburse the university, it was because there was an *366obligation, legal or moral. If it has never been discharged it still exists, and if so the promise to pay it is not contracting a debt, though it may be rendering the obligation enforceable. It has been held that when the legislature assumes jurisdiction to adjust a claim made against the State and does adjust it, no suit will lie under §1419, supra. Julian v. State (1894), 140 Ind. 581.
And if its action is final in that respect, it is difficult to perceive how the courts may review its action in the particular at bar, unless we could say that there is no foundation for its action — that is, that there was no moral obligation. To do this would require that we should set up our opinion on that question against that of the legislature, in a matter in which its jurisdiction is exclusive, except as limited by the Constitution. And when we attempt to apply the limitations under which the courts are authorized to interfere, we are confronted with the proposition that the moral obligation is one thing, and its enforcement or its enforceability quite another thing. The obligation may not be enforceable, and still exist. These limitations apply to contracting debts, and not to recognition of obligations, though moral only, that previously existed. Could it reasonably be claimed that the recognition and putting in form of a bond, after the Constitution of 1851 went into effect, of a bona fide state debt existing before that time was the contracting of a debt? The learned appellant frankly concedes that “ when a debt within the use and legal contemplation of the term exists, its form may be changed into a promissory note, and from a promissory note into a bond,” etc.
Must it be an enforceable obligation in order to be a debt, or may it be a moral obligation? In its last analysis this is the key to the decision that should be rendered in this case. If a moral obligation, based upon an antecedent legal obligation is sufficient, as I think it is, then its acknowl*367edgment is no more the contracting of an indebtedness than the refunding of an existing, enforceable obligation that is held not to be in violation of article 13 of the state Constitution, limiting political and municipal corporate indebtedness to two per cent of the taxable property within such corporation, but is the acknowledgment of previous indebtedness. Myers v. City of Jeffersonville (1896), 145 Ind. 431; Powell v. City of Madison (1886), 107 Ind. 106; City of Logansport v. Dykeman (1888), 116 Ind. 15.
The moral obligation standing alone might not be sufficient, but when it arises from a precedent legal obligation, which is acknowledged by the act under consideration, and is not so palpably without foundation that the courts can so declare, it seems to me that it is a matter of purely legislative discretion, and does not fall within the inhibition of the Constitution as the contracting of a debt, but is the change from a moral obligation, based upon an antecedent legal obligation, to an acknowledgment of both as a preexistent debt.