East Lake Lot Owners Ass'n v. Town of Prince's Lakes

205 N.E.2d 821, 246 Ind. 333, 1965 Ind. LEXIS 357

• Court: Indiana Supreme Court
• Decided: April 12, 1965
• Docket: 30,509
• Status: Published

Opinions

Achor, J.

Appellants have filed a “Petition to Reconsider” the court’s action in dismissing the case as moot because of the repeal of the ordinance on which the litigation was based. The substance of the petition appears to be that many persons have been arrested under the town ordinance for operating boats in excess of the speed fixed by the ordinance and proceedings on arrests made pursuant to the now repealed ordinance have been held in abeyance, pending the determination of the appeal here involved.

Appellants contend that dismissal of the case as moot leaves such arrested parties at a disadvantage and threatens to leave the lower court decision on which the appeal was based as res adjudicata, as to some issues.

However, the arrested parties will not be “inconvenienced” or at a “disadvantage” by the dismissal. At common law, the repeal of a criminal law without a saving clause terminated prosecutions for violations of the law prior to repeal. 8 I. L. E., Criminal Law §5, p. 72. Indiana has enacted a general saving clause applied to its criminal statutes, Burns’ Ind. Stat. Anno. §1-307 (1946 Repl.). However, the statute makes no reference to city ordinances.¹ It appears necessary then to enact a saving clause in each repeal of an ordinance to preserve proceedings dependent on the repealed ordinance. See: Terre Haute & Logansport Railroad Co. v. City of South Bend (1896), 146 Ind. 239, 242-243, 45 N. E. 324 (decided after enactment of §1-307, supra); 20 I. L. E., Municipal Corporations §60, p. 388. In the South Bend case, supra, this court stated:

“ . . . Tf, during the progress of a prosecution, the ordinance on which it is based is repealed, the prosecution must fail, unless the repealing ordinance contains some express provisions whereby all pending prosecutions are saved from its operation.’ ”

The repealing ordinance here involved contains no saving clause. Aside from formal parts it provides as follows:

“Section 1. Ordinance No. 7 which includes Sections 1, 2, 3, 4, and 5 is hereby repealed in its entirety. This ordinance shall be in full force and effect after its passage as provided by law.”

Consequently, the proceedings referred to by appellants would be terminated by the repealing ordinance.

Appellant’s fears of the lower court judgment becoming res adjudicata are not well founded since that judgment depended on an ordinance. The ordinance having been repealed, there is, therefore, no basis for the lower court judgment and it is no longer of any effect.

Further, it is asserted that the ordinance here in question was unconstitutional for the reason that the appellee was, by statute, denied authority to adopt such an ordinance, and that the case should be decided on that basis. However, as to this issue, denial of rehearing in this case is made appropriate by the well-settled principle that this court will always avoid deciding constitutional questions when the case under consideration can be concluded upon other grounds. St., Gross Inc. Tax Div. et al. v. Pearson Constr. Co. (1957), 236 Ind. 602, 141 N. E. 2d 448.; Greene, Mayor v. Holmes (1929), 201 Ind. 123, 166 N. E. 281; Meno v. State (1925), 197 Ind. 16, 148 N. E. 420,164 N. E. 93.

The petition is, therefore, denied.

Arterburn, C. J. and Landis, J., concur.

Jackson, J., dissents, with opinion.

Myers, J., concurs in the dissent.

1 . “. . . [T]he repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture or liability incurred under such statute, unless the repealing act shall so expressly provide; and such statute shall be treated as still remaining in force for the purposes of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability.” §1-307, Burns’ Ind. Stat. Anno. (1946 Repl.)