On Petition for Rehearing
Achor, C. J.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 controversary 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. Apellants contend that since the second ordinance was in effect at the time of the trial and judgment that, *667under §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. v. Indianapolis Gas Co. (1904), 163 Ind. 48, 71 N. E. 139, 38 C. J. 551, 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., Appellant v. Arnold, Director of Service and Inspector of Buildings, Appellee, 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 therein deprived relator of its property rights without due process of law in violation of the Constitution of Ohio.” State ex rel. Castle National, Inc. v. Village of Wickliffe, et al. (1947), (Ohio App.), 80 N. E. 2d 200, 202, 148 Ohio St. 410, 74 N. E. 2d 270. See also; Lordship Park *668Association v. Board of Zoning Appeals (1950), 137 Conn. 84, 75 A. 2d 379, 382.
This rule, we believe, is consistent with the general rule of law that ordinances or statutes which are substantive in their effect are not retroactive.
“. . . the general rule, which is almost universally supported by the authorities, is that retrospective laws are unconstitutional if they disturb or destroy existing or vested rights,
“. . . In accordance with the foregoing rules, statutes have been held invalid which retroactively . . . require approval of a planning commission as a condition of recording deeds to small pieces of property, . . .” 16A C. J. S., Constitutional Law, §417, pp. 99-103; 5 I. L. E., Constitutional Law, §151, p. 420; City of Indianapolis, etc. v. Wynn et al. (1959), 239 Ind. 567, 157 N. E. 2d 828; Schneck v. City of Jeffersonville (1898), 152 Ind. 204, 217, 52 N. E. 212; Muncie National Bank v. Miller (1883), 91 Ind. 441, 445-446; Rupert v. Martz (1888), 116 Ind. 72, 76, 18 N. E. 381.
Under this rule the ordinance, which was adopted after appellees’ right of action had accrued and been asserted by a demand for approval and the filing of this action, did not nullify appellees’ right to the remedy which they have sought in this action.
Two: Appellants also assert that the opinion violates a fundamental principle of statutory construction. Appellants argue that in construing §48-802, Burns’ 1950 Repl., the court did not also consider §48-801 and thus consider the statute as a whole. The argument is without foundation.
Three: Further appellants urge that the opinion, which limits the “approval or disapproval” of plats to *669the express statutory standards or previously adopted codes, “prejudices all of the several hundred smaller cities and towns of Indiana which lack additional zoning and subdivision control ordinances,” but appellants give no reason to justify such cities and towns in not exercising their responsibility for adopting codes for the development of the communities to and for which they are responsible. In the absence of such ordinances a greater “prejudice” would operate against private citizens were they permitted only to improve their property subject to the undefined discretion of the officials authorized to “approve or disapprove” such improvements.
Appellants’ argument poses an interesting issue of political philosophy as demonstrated by the facts of this case. Here a plan commission undertook to regulate the improvement of appellees’ subdivision even though the decisions of that body were “made dependent on a non-existent Street and Thoroughfare Plan.” As a consequence appellees found it necessary to develop their land by laying out streets and alleys and constructing sewers and other utilities through a continuing process of consultations with town officials. During this construction there was a change of city engineers and several changes in plans and specifications were required and submitted. After 15 months, with many delays occasioned by these negotiations, the construction was completed, but on final examination of the “plat” as developed, the commission “disapproved” it. A government which exercises such police power over the property of its citizens without any fixed standards which are known to the citizens and the enforcing officials is government by men, and not by law.
The petition for rehearing is therefore denied.
Arterburn and Landis, JJ., concur. *670Bobbitt and Jackson, JJ., dissent to opinion and vote to grant rehearing.Note.—Reported in 157 N. E. 2d 469.
Rehearing denied in 160 N. E. 2d 200.