Defendant-Appellant Adult Group Properties, Ltd., et al. (AGP) appeals the trial court's granting of a permanent injunction enjoining AGP from building a structure for the developmentally disabled in a residential subdivision.
We affirm.
ISSUES
AGP presents two issues for our review. Restated, they are
1. whether the trial court erred by finding a residential subdivision's restrictive covenants lawfully could be invoked to prohibit construction of a residential facility for developmentally disabled or mentally ill persons which was to be operated as a commercial enterprise in violation of those covenants; and
2. whether the trial court erred by finding the proposed use was non-residential and multi-family. FACTS
Extension Heights is a subdivision of the city of Anderson, Indiana. The plat of the subdivision, duly recorded in 1960, contains restrictive covenants regarding use and oc-cupaney of the lots therein. Covenants numbered one and two provide
1) LAND USE AND BUILDING TYPE: No lot shall be used except for residential purposes. No building shall be erected, altered, placed or permitted to remain on any lot other than one detached single family dwelling not to exceed two and one-hglf stories in height
[[Image here]]
2) ARCHITECTURAL CONTROL: No building shall be erected, placed, or altered on any lot in the subdivision until the building plans, specifications, and plot plans showing the location of such building have been approved in writing by the directors of the Board of Church Extension and Home Missions of the Church of God.
(R. 31). The covenants also provided they were to run with the land.
Appellees Richard and Mary Ann Imler (Imlers) purchased lot number one in Extension Heights in 1960. Theirs was the first home in this subdivision. The covenants were important to the Imlers when they purchased the lot. The covenant providing subdivision lots would be used for residential purposes only was one of the reasons they bought a lot there instead of elsewhere.
Much later, DEVCO Mortgage Company (DEVCO), an Ohio corporation, AGP's nominal party, acquired title to lot number two bordering the Imlers' lot. On October 22, 1985, DEVCO conveyed lot two to AGP, an Ohio limited partnership. DEVCO is in the business of erecting and operating residential facilities for developmentally disabled or mentally ill. persons in residential subdivisions throughout the state as a commercial enterprise.
The architect for DEVCO contacted Mr. Imler on December 12, 1985, the evening of the day a contractor removed the top soil from lot two preparatory to beginning construction of AGP's proposed facility. The architect told Imler he did not believe he needed the Church Board's permission to put the proposed business there, the cove*462nants had nothing to do with whether or not it could be so placed. He further told Imler the structure would be used for a business purpose.
The subdivision's covenants also provided for their enforcement by way of injunction. The Imlers filed suit for injunction the next day and a restraining order then a temporary injunction issued against DEVCO and its real party in interest, AGP who had intervened. The temporary injunction prevented the erecting of the proposed facility until approval had been obtained from the Church Board. :
When AGP received the Board's approval, the trial court after hearing, issued a permanent injunction against the erecting of the proposed facility because the covenants restricted the use of the subdivision's lots to residential purposes only, and AGP's proposed facility was a business enterprise.
AGP appeals.
DISCUSSION AND DECISION
Whether to grant or deny an injunction lies within the trial court's sound discretion. City of Muncie v. Pizza Hut of Muncie, Inc. (1976), 171 Ind.App. 397, 357 N.E.2d 735, 736. Unless it can be shown the decision of the trial court was arbitrary or an abuse of discretion, the court's judgment will not be disturbed. Id.
In reviewing a trial court's discretionary power to grant or deny an injunction, this court considers only the evidence which supports the trial court's judgment along with all reasonable inferences which may be drawn therefrom. State ex rel. D.N.R. v. Mason (1981), Ind.App., 416 N.E.2d 1312, 1315.
AGP argues certain Indiana statutes demonstrate a public policy to integrate the developmentally disabled and mentally ill into the various communities of Indiana. To support its position, AGP points to four Indiana statutes, namely, IND.CODE 16-183-22-1, 16-18-22-8, 16-13-21-12, and 16-13-21-14 which it claims support its position. Our reading of these sections reveals only two of them are relevant to the issues in this appeal.
The first two sections AGP cites deal with the planning and administration of community based residential alternatives to institutionalization of the developmentally disabled and mentally ill. The first provides facilities for such persons shall have a homelike atmosphere. The second requires placement of program participants in programs which are the least restrictive consistent with their individual needs. Neither section deals with the location of such facilities in residential areas. The remaining two, however, touch that subject matter.
IC 16-18-21-12 says
Zoning ordinances adopted under IC 36-7 may not exclude a residential facility for the developmentally disabled from a residential area solely because the residential facility is a business or because the persons residing in the residential facility are not related, unless the residential facility will be located within three thousand feet (8,000) of another residential facility, as measured between lot lines.... (Emphasis supplied),
and IC 16~13-21-14 reads in pertinent part
Any restriction, ... or covenant in any subdivision plat, ... pertaining to, the . use of property that would permit the residential use of property but prohibit the use of that property as a residential facility for the developmentally disabled or mentally ill persons, is, to the extent of the prohibition, void as against the public policy of the state. (Emphasis supplied).
Two things are markedly different between these two sections, namely, (a) facilities for mentally ill persons may be excluded by local zoning ordinances in residentially zoned areas, and (b) the emphasized language in Section 12 or words of similar import allowing commercial operation of facilities for the developmentally disabled and mentally ill persons in residential subdivisions protected by restrictive covenants do not appear in Section 14. Nothing indicates such language was omitted from Section 14 through inadvertence or mistake. We further note Sections 12 and 14 of IC 16-18-21 were passed during the same ses*463sion of the legislature and on the same day. Thus, the question is did the legislature intend such facilities could be built and operated as business enterprises in subdivisions protected by covenants restricting use of lots therein to residential purposes only?
L.
A. Rules of Construction
When construing statutes, our foremost concern is to determine and give effect to the true intent of the legislature. Frame v. South Bend Community School Corp. (1985), Ind.App., 480 N.E.2d 261, 263. Statutes which relate to the same thing or general subject matter are in part materia and should be construed together. Citizen's Action Coalition of Indiana, Inc. v. NIPSCO (1985), Ind., 485 N.E.2d 610, 617. Wright v. Gettinger (1981), Ind., 428 N.E.2d 1212, 1219; Matter of Lemond (1980), 274 Ind. 505, 413 N.E.2d 228, 245, n. 15; U.S. Steel v. NIPSCO (1985), Ind.App., 486 N.E.2d 1082, 1085; Johnson v. La-Porte Bank & Trust Co. (1984), Ind.App., 470 N.E.2d 350, 354-355; Ind. State Hw'y. Comm'n. v. Bates & Rogers Constr., Inc. (1983), Ind.App., 448 N.E.2d 321, 323-324. Also, laws passed at the same session of the legislature relating to the same subject matter are in pari materia and should be construed together, especially when they are approved on the same day. Obermeyer v. Indianapolis Lien & Credit Co. (1968), 251 Ind. 382, 241 N.E.2d 252, 254. All statutes relating to the same subject matter should be so construed with reference to each other that effect may be given to all the provisions of each, if this can be done by any fair and reasonable construction, so as to produce a harmonious system, if possible. Ware v. State (1982), Ind.App., 441 N.E.2d 20, 22-23.
Statutes passed on the same day or at the same session, when related to the same subject, are presumed to be actuated by the same policy. It is proper to construe them together, as parts of one body of laws, and as together expressing legislative will. Combs v. Cook (1958), 238 Ind. 392, 151 N.E.2d 144, 147; Olszewski v. Stodola (1948), 226 Ind. 639, 82 N.E.2d 256, 257; Holle v. Drudge (1920), 190 Ind. 520, 524-525, 129 N.E. 229. We are to determine the intent of the legislature in this regard by considering each section of this Act with reference to all other sections and the legislature's apparent motive for leaving out wording in IC 16-13-21-14 which would permit the location and operation of business enterprises of this nature in residential areas protected by restrictive covenants. Combs, 151 N.E.2d at 147. In construing a statute, it is just as important to recognize what a statute does not say as it is to recognize what it does. Van Orman v. State (1981), Ind.App., 416 N.E.2d 1301, 1305; State ex rel. Schuerman v. Ripley County Council (1979), Ind.App., 395 N.E.2d 867, 870.
B. The Covenants Prevail
A careful reading of IC 16-18-21 demonstrates a legislative intent to treat cases where business enterprises seek to establish residential facilities for the developmentally disabled in residentially zoned areas differently from cases involving the commercial placement of such facilities in real estate subdivisions where commercial activities are prohibited by covenants restricting the use of lots therein to residential uses only, as in this case. Under Section 12, zoning ordinances may not exclude such facilities "solely because the residential facility is a business...." Section 14 attempts to render void as against public policy restrictive covenants which permit residential use of property but prohibit use of subdivision property "as a residential facility for the developmentally disabled or mentally ill persons...." That section, however, contains no language authorizing such facilities to be placed therein when they are to be operated as business enterprises.
When a commercial establishment of this nature seeks to do business in a subdivision whose covenants restrict lot use to residential purposes only, the legislature intended the restrictive covenants were to prevail. Were it otherwise, words permitting the location of such businesses in cove*464nant-protected subdivisions would appear in IC 16-13-21-14. It is important for us to recognize what a statute does not say, as well as what it does. Van Orman, and State ex rel Schuerman, supra.
Also, we must presume the legislature intended to pass a constitutional act since a statute is presumed to be constitutional in the first instance. When a statute may be construed so as to support its constitutionality, we must adopt such construction. U.S. Steel, 486 N.E.2d at 1085; Miller v. State (1983), Ind.App., 449 N.E.2d 1119, 1121.
C. Restrictive Covenants Are Contract Rights
Generally, a covenant imposing an affirmative burden will run with the land if (1) the covenantors intended it to run, (2) the covenant touches and concerns the land, and (8) there is privity of estate between subsequent grantees of the original covenantor and covenantee. Moseley v. Bishop (1984), Ind.App., 470 N.E.2d 773, 776. A restrictive covenant creates a property right in each grantee and subsequent grantees. Pulos v. James (1973), 261 Ind. 279, 302 N.E.2d 768, 771; Wischmeyer v. Finch (1952), 231 Ind. 282, 107 N.E.2d 661, 664. The purpose of a restrictive covenant is to maintain or enhance the value of lands pertinent to one another by controlling the nature of the surrounding lands and the uses to which they are put. Bob Layne Contractor, Inc. v. Buennagel (1973), 158 Ind.App. 43, 301 N.E.2d 671, 678. While restrictive covenants are not judicially favored, they will be equitably enforced if they are set out without ambiguity and are not violative of public policy. Buennagel, 301 N.E.2d at 678; Bachman v. Colpaert Realty Corp. (1935), 101 Ind.App. 306, 194 N.E. 783, 787. Covenants restricting business activity are not violative of public policy. Ferris v. American Brewing Co. (1900) 155 Ind. 539, 58 N.E. 701, 702.
The restrictive covenants here were duly recorded with the subdivision's plat in 1960. Their recording constituted notice to the world of their contents. Wischmeyer v. Finch (1952), 231 Ind. 282, 107 N.E.2d 661, 663; Vierk v. Ritenour (1961), 131 Ind.App. 547, 172 N.E.2d 679, 683. When the first lot was sold, the covenants became binding. They could not thereafter be modified or extinguished without the consent of all the lot owners in the subdivision. Wischmeyer, 107 N.E.2d at 664. These restrictive covenants created a property right in the Imlers, and the property right they acquired cannot be taken for a private use. Pulos, 302 N.E.2d at 771.
To construe Section 14 as authorizing commercial enterprises such as AGP to build and operate such facilities in contravention of the subdivision's covenant restricting the lots therein to residential use only, would make the statute unconstitutional because it would violate Article I, Sections 21 and 23 of the Indiana Constitution,1 and the due process clause of the Fourteenth Amendment to the United States Constitution.2 Pulos, 302 N.E.2d at 771. Thus, we must interpret this section as making the restrictive covenants enforceable against AGP and its proposal to operate a business on lot 2 in violation of the subdivision's covenants to make the section constitutional. U.S. Steel, supra, and Miller, supra.
Finally, interpretation is required also to prevent a violation of Article I, Section 24 of the Indiana Constitution, which provides
No ex post facto law, or law impairing the obligation of contracts, shall ever be passed.
*465and Article I, Section 10 of the United States Constitution which reads, in part
No State shall ...; pass any ... Law impairing the Obligation of Contracts,
[[Image here]]
The legislature may not impair previously legal contracts after rights thereunder have vested. Supreme Council Catholic Knights of America v. Logsdon et al (1915), 183 Ind. 183, 108 N.E. 587, 592.
D. Covenants Do Not Violate Equal Protection Clause
Finally, AGP claims the situation here is identical to that found in Shelley v. Kraemer (1948), 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161. In Skelley, a restrictive covenant barred occupancy of lots in a subdivision by members of the Negro race. The United States Supreme Court found enforcement of such a covenant by state courts would constitute state action in violation of the equal protection clause of the Fourteenth Amendment. Shelley, 334 U.S. at 20, 68 S.Ct. at 845.
It is readily apparent the covenants here discussed do not violate the equal protection clause. These covenants neither directly nor by necessary implication prohibit occupancy of the lots in the subdivision by developmentally disabled or mentally ill persons for residential purposes in structures meeting the requirements of the subdivision's building restrictions. Only business uses are prohibited. In this regard, the Shelley court said
It should be observed that these covenants do not seek to proscribe any particular use of the affected properties. Use of the properties for residential occupancy, as such, is not forbidden. The restrictions of these agreements, rather, are directed toward a designated class of persons and seek to determine who may and who may not own or make use of the properties for residential purposes. The excluded class is defined wholly in terms of race or color; "simply that and nothing more."
Shelley, 334 U.S. at 10, 68 S.Ct. at 840. Thus, AGP's argument on this point is without merit.
The trial court did not err by entering the permanent injunction.
II. Trial Court's Definition of "Family" Correct
AGP next contends the trial court erred by defining the word "family" as used in the restrictive covenants to mean persons related by blood or marriage. In support of its argument, it cites 660 IAC 3-1-4. That section says
FAMILY is an individual or two or more persons related by blood or marriage and/or a group of not more than eight persons (excluding servants) who need not be related by blood or marriage living together in a dwelling unit.
That definition formerly was part of the Indiana Building Code. It was not in effect in 1960, nor is it in effect now. This section of the code was repealed effective January 1, 1985.
Because the restrictive covenants here created fixed contract rights in the Imlers and other subsequent grantees when lot 1 in Extension Heights was conveyed to them in 1960, the meaning of the word "family'" as used in the covenants also became fixed at that time. The date of the contract usually controls its obligations. Free v. Haworth (1862), 19 Ind. 404. Thus, it was incumbent upon the trial court to determine the precise meaning of the word at that time.
We find the following language clearly states the rule when covenants are to be construed:
Where the language of a covenant is unambiguous, clear, and specific, the rule, similar to that adopted in the construction of statutes, is that no room is left either for interpretation or for construction. Otherwise, however, the paramount rule for interpretation of covenants so to expand them as to give affect to the actual intent of the parties, as of the time the covenant was made, and as collected from the whole instrument construed in connection with the circumstances surrounding its execution, with a view to support, rather than to defeat, the instrument. Nothing should be read *466into the language of the covenant extending its meaning beyond what its language fairly imports.... The language of a covenant must be read in an ordinary or popular, and not in a legal or technical, sense. It has been said that technical words should be construed as they are understood by scientific men and mechanics acquainted with the business in regard to which the covenant is made; but, since intent, and not words, is the essence of every agreement, it would seem that such words are to be construed, if possible, to effectuate the intent of the parties, and hence, according to their accustomed meaning as used and understood by the community at large, and unless the cireumstances and context indicate that a different meaning is intended. (Emphasis supplied).
21 Corpus Juris Secundum, Covenants § 20, 896-897.
The trial court, applying the above principles, defined the term family, saying
"Family" implies father, mother and children, immediate blood relatives. Collins v. Northwestern Casualty Co., [180 Wash. 347] 39 P.2d 986. _
(R. 16). The construction of a written contract is generally a question of law for the court's determination. Kordick v. Merchants National Bank and Trust Co. (1986), Ind.App., 496 N.E.2d 119, 125; Ancich v. Mobil Oil Co. (1981), Ind.App., 422 N.E.2d 1320, 1321-1322. Nevertheless, if reasonable men would find the contract susceptible to more than one construction, ambiguity exists. Kordick, Ancich, Id.; Kleen Leen, Inc. v. Mylcraine (1977), 174 Ind.App. 579, 369 N.E.2d 638.
The trial court correctly treated this question as a mixed question of fact and law. Wherever the intent of the parties to a contract is not spelled out, and the evidence is conflicting, the issue as to their intent is a question of fact. Hearst Corp. v. Cuneo Press, Inc. (C.A.7, Ind.1961) 291 F.2d 714, 720. A contract is ambiguous when reasonable persons would find its terms subject to more than one interpretation. Midwestern Indemnity Co. v. Leffler Construction Co., (1984), Ind.App., 463 N.E.2d 1130, 1133; R.R. Donnelley & Sons, Co. v. Henry-Williams, Inc. (1981), Ind.App., 422 N.E.2d 353, 356. If the terms of a contract are ambiguous, it is the responsibility of the trier of fact to ascertain the fucts necessary to construe the contract. Midwestern Indem. Co., Id.; Indiana Industries, Inc. v. Wedge Products (1982), Ind.App., 430 N.E.2d 419, 423.
It is readily apparent reasonable persons could have differed as to the meaning of the term in question at the time the covenants became binding in this case. Defining the term, Black's Law Dictionary reads in part,
FAMILY. The word is used to designate many relationships. (Citing cases).
In broad or primary sense "family" means: a collective body of any two persons living together in one house as their common home for the time; (citing case) a collective body of persons, living together in one home, in a permanent and domestic character, under one head or management, (citing case); a collective body of persons who live in one house and under one head or management, (cit ing case); a group of blood-relatives; all the relations who descend from a common ancestor, or who spring from a common root, (citing case); a group of kindred persons, (citing case); husband and wife and their children. (Citing case).
In most common use, the word implies father, mother and children, immediate blood relatives. (Citing case).
In narrow or restricted sense "family" means: a father, mother, and children, whether living together or not, (citing case); group of parents and children founded on principle of monogamy, (cit img case), husband and wife and their children, (citing case).
In ordinary conversation, the word is descriptive of a person's wife and children. (Citing case).
. In restricted sense, the word "family" may be used interchangeably with household. (Citing cage).
In secondary meaning, "family'" means those who are of the same lineage, or *467descend from one common progenitor. (Citing case).
Black's Law Dictionary, Revised Ath Edition, West Publishing Co. (1968). Because the term "family" can mean different groups of persons in different factual settings, the trial court correctly first determined factually which of the several definitions of that term applied in the factual setting before him. Having done so, he then construed the covenants as a matter of law for the court. Midwestern Indem. Co.; RR. Donnelley & Sons, Co., supra.
Where there is uncertainty, obscurity or ambiguity in the language of a contract, the acts of the parties in connection therewith furnish valuable aid in the construe, tion of it.
[Elvidence of the mutual acts of the parties to the contract in reference to the fulfilment of it, after it was entered into, is admissible to show what their intention and understanding was in the use of language otherwise somewhat obscure.
Ketcham et al v. Brazil Block Coal Co. (1883), 88 Ind. 515, 529; Pierce v. Yochum (1975), 164 Ind.App. 443, 330 N.E.2d 102, 107. In this regard, there was evidence before the trial court that thirty-four of the thirty-five lots in the subdivision had been developed as one family residences. (R. 420). Further, a real estate expert testified in his opinion, the use contemplated by AGP would be a change of use from that of single-family to multi-person occupancy, its proposed project would not be a single family residence in this particular case. (R. 436-487).
Thus, the trial court's determination the word "family" as used in the restrictive covenants meant "father, mother and children, immediate blood relatives" is supported by substantial evidence of probative value.
We find no error.
Affirmed.
NEAL, J., éoncurs. MILLER, J., dissents with separate opinion.. Article I, Section 21 provides:
No man's particular services shall be demanded, without just compensation. No man's property shall be taken by law, without just compensation; nor, except in case of the State, without such compensation first assessed and tendered.
and Article I, Section 23 provides:
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.
. The Fourteenth Amendment reads in part
Nor shall any state deprive any person ... of property, without due process of law.