Dickson, C.J.
The Equal Privileges and Immunities Clause, Article 1, Section 23 of the Indiana Constitution, prohibits the “grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens.” Today we hold that this clause invalidates an Evansville ordinance expanding the city’s smoking ban to bars and restaurants but exempting its only riverboat casino (“the Casino”).
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The City also urges that the Equal Privileges and Immunities Clause should not be applied as an obstacle to incremental legislation to reduce smoking or advance other public health goals. We decline to condone violation of constitutional provisions to justify such policy implementation strategies. The City is not constrained to two choices: a complete ban or no ban at all. A legislative body may attack a problem incrementally, but any resulting disparate treatment must be reasonably related to the inherent characteristics that distinguish the unequally treated classes. [Footnote omitted.] The 2012 amendment to the Smoking Ban fails this requirement.
As to the first prong of Collins, we find that the Amending Ordinance violates Article 1, Section 23 of the Indiana Constitution because by prohibiting smoking in bars and clubs but permitting smoking in riverboat casinos, the enactment provides an unequal privilege that is not reasonably related to the inherent distinguishing characteristics of the two affected groups. Be-cause compliance with Section 23 requires satisfaction of both the first and second prong of Collins, the failure to satisfy the first prong obviates the need to discuss the second prong.
We hold that the Amending Ordinance, on its face, violates the Equal Privileges and Immunities Clause of the Indiana Constitution because the disparate treatment—exempting floating casinos with “riverboat” statutory gambling authorization but not land-based bars and clubs, including those with gambling authorization from other statutory sources—is not reasonably related to the inherent differences between the divergently-treated classes. [Footnote omitted.]
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Standing alone and without its exemption for riverboat casinos, the Amending Ordinance could be given legal effect; however, the evidence indicates that the City and its Council did not intend for the 2012 Amending Ordinance to stand without such exemption. The 2006 Smoking Ban contains a severability clause; but the 2012 Amending Ordinance does not, thus raising the presumption that the Council intended the latter to be effective in its entirety or not at all. Fur-ther, other evidence suggests that the invalid part of the Amending Ordinance was the inducing cause for its enactment. The City admits that the Amending Ordinance would likely not have passed without the riverboat casino exemption: “[t]he [2012 Amending Ordinance] would likely not have passed without the Casino exemption . . . .” Appellees’ Brief at 12–13. This statement is bolstered by comments made by at least four (of nine) Council members at the meeting to amend the 2006 Smoking Ban, stating that they believed the Amending Ordinance would not pass without the riverboat casino exemption. Common Council of the City of Evansville, G-2012-1 Smoking Ordinance Comm. Meeting Minutes (Feb. 13, 2012) (Joint Exhibit No. 2) at 44–46. We conclude that the 2012 Amending Ordinance is not internally severable and is thus invalidated as a whole as unconstitutional. The 2006 Smoking Ban is therefore restored as it ex-isted before the 2012 amendment.
Conclusion
We reverse the judgment of the trial court and hold that the 2012 Amending Ordinance violates Article 1, Section 23 of the Indiana Constitution and must be stricken in its entirety.
David and Massa, JJ., concur.
Rush, J., dissents with separate opinion in which Rucker, J., concurs.
Rush, J., dissenting.
I respectfully dissent from the majority opinion and would uphold the constitutionality of Evansville’s riverboat exemption under the Equal Privileges and Immunities Clause of the Indiana Constitution. Expanding a smoking ban to cover bars, taverns, and private clubs, but exempting a riverboat, is reasonably related to a riverboat’s inherent characteristics—fiscal impact on the local economy and tax revenues, and out-of-town clientele that other local businesses lack. The Indiana Constitution does not require treating bars as equivalent to riverboats merely be-cause they both serve alcohol. Ever since Collins v. Day, we have consistently held that plaintiffs who allege unconstitutional privilege must negate “every conceivable basis which might have supported the classification.” The City’s Amended Ordinance passes under this standard because the Petitioners present no substantial reason to overturn an ordinance tailored to fit local preferences.
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In conclusion, Evansville’s only riverboat is inherently distinct from bars, taverns, and private clubs, and not just because it floats. It significantly impacts the local economy and at-tracts mostly out-of-town visitors—visitors who are not the primary focus of the City’s effort to expand its public health law protecting its residents from second-hand smoke. The City’s exemption of the Riverboat from its public smoking ban does not violate the Equal Privileges and Immunities Clause because the exemption is reasonably related to those inherent characteristics. Holding otherwise would prevent cities like Evansville from acting incrementally to protect the public health and would unnecessarily encroach upon legislative prerogative. For these reasons, I respectfully dissent from the majority opinion.
Rucker, J., concurs.