I concur in the conclusion reached in the opinion of Monks, J., that the act in question is unconstitutional and void, and that the judgment should be reversed.
Separate Opinion.
Morris, J.I cannot concur in the opinion of Monks, J., that the act of the General Assembly, in controversy here, violates any provision of organic law. Article 1, §23, of our Constitution reads as follows: ‘ ‘ The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.”
I am unable to discern wherein this provision is violated by the act in controversy, and think counsel for appellant have failed properly to interpret that provision of our Constitution. The provision simply limits the legislative power to grant to any citizen, or class of citizens, a privilege or an immunity which is not granted to other citizens on the same terms. This act does not classify citizens, in granting the privilege. It simply limits the thing to which the law is *654applicable, and tbe locality within which it applies. Any person, regardless of color, sex, residence, occupation or other characteristic, or regardless of whether he is a citizen of Indiana, may become entitled to the privilege granted if he constructs a sewer within the given territory and under the given conditions. Smith v. Indianapolis St. R. Co. (1902), 158 Ind. 425, 63 N. E. 849; Smith v. Stephens (1910), 173 Ind. 564, 91 N. E. 167, 30 L. R. A. (N. S.) 704; Strange v. Board, etc. (1910), 173 Ind. 640, 91 N. E. 242; Cummins v. Pence (1910), 174 Ind. 115, 91 N. E. 529.
'While the act may be conceded to be local, the subject-matter does not come within the prohibition of article 4, §22, of our Constitution. Article 4, §23, requires general laws, where they can be made applicable, but this court has held repeatedly and consistently that the question of the applicability of a general law is for the determination of the General Assembly. Gentile v. State (1868), 29 Ind. 409; Long v. State (1910), 175 Ind. 17, 92 N. E. 653; Wiley v. Corporation of Bluffton (1887), 111 Ind. 152, 12 N. E. 165; Bell v. Maish (1894), 137 Ind. 226, 36 N. E. 358, 36 N. E. 1118; Mode v. Beasley (1896), 143 Ind. 306, 42 N. E. 727; Smith v. Indianapolis St. R. Co. (1902), 158 Ind. 425, 63 N. E. 849.
The statute makes two classifications, viz., cities of the State, and the things or structures to which it applies. We have no constitutional inhibtion against classifying objects or structures, except article 4, §22, which has no application, because the statute does not deal with any of the seventeen specified subjects therein mentioned. Yalid classifications of cities, or other municipal corporations, may be made on a population basis, for local self-governmental purposes, and other purposes, not embraced in the seventeen specified subjects in article 4, §22. City of Indianapolis v. Navin (1898), 151 Ind. 139, 47 N. E. 525, 51 N. E. 80, 41 L. R. A. 337; Strange v. Board, etc. (1910), 173 Ind. 640, 91 N. E. 242.
It is not claimed by counsel for appellant, in their brief, *655that the act is in violation of article 11, §13, of the Indiana Constitution. This section reads as follows: “Corporations other than hanking, shall not be created by special act, but may be formed under general laws.” If it should be conceded that this court may be warranted in reversing a judgment of a trial court on a constitutional point not contended for by appellant, I am persuaded that the act in no way purports to create a corporation within the meaning of the constitutional inhibition, and, in my judgment, nothing decided in the case of Town of Longview v. City of Crawfordsville (1905), 164 Ind. 117, 73 N. E. 78, 68 L. R. A. 622, 3 Ann. Cas. 496, is in conflict with this view. City of Indianapolis v. Navin, supra.
The objection that the statute deprives the cities therein enumerated of local self-government is not tenable. State, ex rel., v. Board, etc. (1908), 170 Ind. 595, 85 N. E. 513; State, ex rel., v. Fox (1902), 158 Ind. 126, 63 N. E. 19, 56 L. R. A. 893.
Appellant earnestly contends that the defense is predicated solely on the act of 1907, under which the obligation sought to be enjoined was created, and that the lease, executed thereunder, is merely an indirect method of paying a void assessment previously enjoined.
It cannot be doubted that a contract, unlawful because in conflict "with organic law, may not be made lawful by evasion or indirection.
It may not be amiss to state here that the .judicial department of our government is expressly prohibited from exercising any function pertaining to that of the legislative department. Const., Art. 3, §1. The authority of the legislative department has been succinctly stated by this court as follows: “The legislative authority of this state is the right to exercise supreme and sovereign power, subject to no restrictions except those imposed by our own Constitution, by the Federal Constitution, and by the laws and treaties made under it.” Beauchamp v. State (1842), 6 *656Blackf. 299. See, also, Mount v. State, ex rel. (1883), 90 Ind. 29, 46 Am. Rep. 192. Every presumption is in favor of the validity of a legislative act. Only when it is clearly subversive of the Constitution, beyond doubt or cavil, may the courts interfere to destroy it. Smith v. Indianapolis St. R. Co. (1902), 158 Ind. 425, 63 N. E. 849. Bilters v. Board, etc. (1881), 81 Ind. 125. Our Constitution does not contemplate a judicial power to censor the acts of the legislative or executive departments of the State government.
The proposition of appellant, that by the terms of the lease the city was seeking by indirection to pay a void assessment, is evidently predicated on the fact that the total rentals are very near, in aggregate amount, to that of the invalid assessment.
There was some conflict in the evidence, but on appeal only that most favorable to appellees can be considered, where the decision is sufficiently supported.
There was evidence that in negotiating for the lease the attorney for the contractor submitted a proposition for a lease on a basis having no reference to the void assessment. The total rental agreed on was $74,444.20, payable in semiannual instalments of $3,722.21, covering a period of ten years. Even if the present value of the rentals was in an amount practically equal to the assessment, it does not necessarily follow that the lease was the equivalent of an obligation to pay the void assessment.
In City of South Bend v. Reynolds (1900), 155 Ind. 70, 57 N. E. 706, it appears that the facts were as follows: The city owned certain real estate, and contracted with one Oliver to erect thereon a city hall for the use of the city “said structure to remain the property of said Oliver unless and until the city should exercise the option given by said contract to purchase the same. That the hall shall be suitable for the needs of the city and according to named plans and specifications, the contract for construction to be left to the best bidder after due notice; the cost not to exceed *657$75,000; and all contracts to be approved by tbe city. That the building when completed be leased to the city for twelve years, with a right of renewal for five years longer at a rental of $7,200, to be paid annually, as the same shall accrue from year to year. Oliver gives, and the city reserves, an option to purchase the building at the termination of the lease, or at any time during the term, at a price equal to the original contract price thereof with four per cent interest per annum, less the sum of the several amounts of rent then paid thereon with four per cent interest per annum on each item of said rent from the date of its payment. In case the city fail to exercise its option to purchase, Oliver has the option either to remove the building or to purchase the ground at its statutory appraised valuation within six months after the termination of said lease. Should he fail to exercise his option the structure thereby becomes the property of the city. In case the exercise of any option is delayed by any order of court or by some overpowering necessity, the time so lost is.not to be counted. The city is to pay taxes and insurance, but in case of fire the insurance is to be invested in repair of the old building, or in the erection of a new one.” When the contract was entered into the city was indebted up to the constitutional limit. Appellee sued the city of South Bend and Oliver, to enjoin them from carrying out the above contract, on the ground that the city thereby became indebted beyond the constitutional limit. Without dissent, this court held as follows: “It is evident that rent for suitable offices, for the officers of a city, is as much an ordinary and necessary expense as the expense for water and light (Grant v. City of Davenport [1873], 36 Iowa 396, 403), and that when the city agrees to pay the rent for said offices annually or monthly, the contract does not create an indebtedness for the amount of all the annual or monthly payments. While the rent for suitable offices for city officers is an ordinary and necessary *658expense, the erection of a city hall, or a building for the use of the city officers, is not in any sense an ordinary and necessary expense, but is an extraordinary one. Grant v. City of Davenport, supra. There is a clear and plain distinction between a contract for the use of rooms or a building for city purposes and the erection by the city of a building to be used for such purposes. The one is an ordinary and necessary expense, while the other involves municipal ownership of the building or rooms, the means of furnishing the offices, and is an extraordinary expense. Brown v. City of Corry [1896], 175 Pa. St. 528, 84 Atl. 854; Grant v. City of Davenport, supra. Under the contract in this case, however, the city hall is not to be erected by or for the city, but by Mr. Oliver who is to own the same, the city being the owner of the real estate upon which it is to be erected. The only contract of the city is to pay an annual rent of $7,200 which is admitted to be only a fair rental value for said building, and if the city does not exercise its option to purchase said building at or before the termination of the lease, to sell and convey the real estate at the price named, provided said Oliver exercises his option to purchase the same within six months after the termination of the lease. If neither party exercises the option provided for in said contracts, within the time fixed, then the city hall building becomes the property of the city. Under said contract the city is under no obligation whatever to pay anything for the erection of said building or to purchase the same when erected. If it should attempt to exercise its option to purchase said building, but cannot do so without violating the constitutional limitation as to becoming indebted, it may be enjoined from exercising such option. No facts are alleged in the complaint showing that the current revenues of the city will not be sufficient to pay the indebtedness for rent under said contract each year when the same comes into existence, including all other expenses for which the city *659is liable. The allegations of the complaint do not show, therefore, that said contract creates any indebtedness in violation of the constitution. Cason v. City of Lebanon [1899], 153 Ind. 567 [55 N. E. 768]. It follows that the judgment must be reversed.”
The above decision was rendered in 1900, and has not been overruled. There are some points of difference in the facts, between the South Bend ease and this one, but, in my opinion, there was as strong reason for holding the South Bend contract a constitutional evasion as in so holding here.
That the cost of building in the South Bend case furnished the principal basis for determining the rental, is evident. Indeed, the cost of construction in both cases furnishes the natural and just basis on which to figure rentals, and a resort to such basis furnishes no reason for the assertion that because thereof there was an attempt to evade the Constitution.
It is also asserted that the act violates article 4, §19, of our Constitution, because the subject-matter is not expressed in the title thereof. Without extending the opinion by a discussion of this proposition, I deem it sufficient to say that, in my judgment, the title of the act is not subject to the infirmity suggested. State v. Closser (1913), 179 Ind. -, 99 N. E. 1057.
It is also contended that the act is in violation of the 14th amendment to the Federal Constitution, because it takes the private property of the city for private use, without due compensation and without due process of law. Neither private nor municipal corporations are citizens, within the meaning of §1 of the 14th amendment, and, in my judgment, the act in controversy is in nowise in conflict with the 14th amendment to the Federal Constitution. Pittsburgh, etc., R. Co. v. Lightheiser (1907), 168 Ind. 438, 78 N. E. 1033; Inland Steel Co. v. Yedinak (1909), 172 Ind. 423, 87 N. E. 229, 139 Am. St. 389; Waters-Pierce Oil Co. v. Texas *660(1900), 177 U. S. 28, 20 Sup. Ct. 518, 44 L. Ed. 657; Dillon, Mnn. Corp. §§22, 23; Lafayette Ins. Co. v. French (1855), 18 How. 404, 15 L. Ed. 451.
In conclusion of the whole subject, I feel it proper to say that municipal corporations should not be absolved from the operation of rules of honest conduct. It was not the intention of the framers of our State Constitution that cities or other governmental agencies should get something for nothing. This statute, in consonance with our highest conception of justice and fair dealing, declares that inasmuch as the city is unable to pay for the construction of the sewer, the title thereto, as against the city, shall be iu the contractor. The city had no vested right in the work. The Constitution prohibited it from incurring any debt therefor. A retrospective act is constitutional, if it neither takes away a vested right in property nor impairs the obligation of a contract. This statute does neither.
It is not complained that the lease is unjust or burdensome to the city. The sewer construction in controversy cost the contractor about $65,000. The use of some sewer was an absolute necessity for the city. It could not pay for one because of the debt limit. The legislature had the power to enact the statute, and justice and fair dealing demands its upholding. Unless restrained by the Constitution, the legislature has the right to recognize a claim founded in equity, even though the obligation is only moral. Hanly v. Sims (1911), 175 Ind. 345, 93 N. E. 228, 94 N. E. 401; Guthrie Nat. Bank v. City of Guthrie (1899), 173 U. S. 528, 19 Sup. Ct. 513, 43 L. Ed. 796.
In my opinion, there is no error in the record, and the judgment should be affirmed.
Spencer, J., concurs in the above opinion. Myers, J., having been of counsel, did not participate.Note.—Reported in 99 N. E. 1060, 1061, 1069. See, also, 3 Cyc. 405.