Knutson v. State ex rel. Seberger

• Decision Date: 17 July 1959
• Docket Number: No. 29647,29647
• Parties: John E. KNUTSON, James M. Hilbrich, Joseph R. Dubeck, as Board of Trustees of the Town of Dyer, Lake County, Appellants, v. STATE of Indiana ex rel. Ray E. SEBERGER and Irene M. Seberger, his wife, Lake County Subdividers, Inc., an Indiana Corporation, Appellees.
• Court: Indiana Supreme Court

Page 200

160 N.E.2d 200 239 Ind. 656 John E. KNUTSON, James M. Hilbrich, Joseph R. Dubeck, as
Board of Trustees of the Town of Dyer, Lake
County, Appellants,
v.
STATE of Indiana ex rel. Ray E. SEBERGER and Irene M.
Seberger, his wife, Lake County Subdividers, Inc.,
an Indiana Corporation, Appellees. No. 29647. Supreme Court of Indiana. July 17, 1959.

[239 Ind. 658] Lowell E. Enslen, Theodore M. Gamberling and Owen W. Crumpacker, of Crumpacker, Gemberling & Enslen, Hammond, for appellants.

Wendell Hamacher, Crown Point, for appellees.

[239 Ind. 666] ACHOR, Chief Justice.

Appellants assert three grounds for rehearing.

One: Appellants assert that this court failed to decide an issue presented, and in this appellants are correct. The issue was not considered of great controversy and therefore was not discussed in the original opinion. However, appellants ask that we rule upon this issue. The issue is presented by the following facts:

As stated in the original opinion the subdivision control ordinance of the town of Dyer was held unconstitutional. However, after the case before us was filed the town board adopted a second subdivision control ordinance, which we assume is valid. Appellants contend that since the second ordinance was in effect at the time of the trial and judgment that, [239 Ind. 667] under § 53-752, Burns' 1951 Repl., the plan commission and not the town board had exclusive authority to approve the plat. Therefore, appellants contend that the order of mandamus against the town board was contrary to law.

Appellants base their contention upon the general rule of law, that in mandamus or injunction cases the court will look at the situation as of the time of the decree so as not to decide a question that has become moot during litigation. State ex rel. City of Indianapolis v. Indianapolis Gas Co., 1904, 163 Ind. 48, 71 N.E. 139; 38 C.J. 551;

Page 201

55 C.J.S. Mandamus § 11. No authority is cited to the effect that a municipality may give retroactive effect to an ordinance so as to deprive a citizen of his right to the approval of a plat as such right existed at the time the plat was presented to the town board for approval.

Our attention has not been called to any decision in this jurisdiction upon this specific question. However, in other jurisdictions where the question has been considered it has been held that,

'* * * 'a municipal council may not, by the enactment of an emergency ordinance, give retroactive effect to a pending zoning ordinance thus depriving a property owner of his right to a building permit in accordance with a zoning ordinance in effect at the time of the application of such permit.' See State ex rel. Fairmount Center Co. v. Arnold, 138 Ohio St. 259, 34 N.E.2d 777, 136 A.L.R. 840. In that case the supreme Court held that the action of council as stated...