concurring and dissenting.
I concur in the result reached in the majority opinion and concur in the opinion of Justice Hunter, to the extent that it recognizes the unenforceability of the alleged contract and that we should refrain from determining the constitutionality of statutes, except in those cases where the litigation cannot be otherwise determined. I also agree that we are not confined to the issue *784raised below in upholding the judgment of the trial court. In Bruce v. State, (1978) 268 Ind. 180, 375 N.E.2d 1042, the appellee had contended that the trial court had no jurisdiction over the offense, in that it had been committed on federal property. The trial court denied his motion summarily. We affirmed upon the authority of a section of the federal statute creating the federal preserve which provided for civil and criminal jurisdiction to remain in the state, notwithstanding that there had been no reliance upon the statute in the trial court.
“Appellant contends that the State may not rely on the federal statute on appeal, having not done so in the trial court. Section 35-3.1-l-8(b) makes pros-ecutorial response to the motion to dismiss optional. Moreover it is well established that a decision of the trial court will be sustained if a valid ground exists to support it, whether or not the trial court considered those grounds. Notter v. Beasley, (1960) 240 Ind. 631, 166 N.E.2d 643, 93 A.L.R.2d 905; Ertel v. Radio Corporation of America, (1976) Ind.App., 354 N.E.2d 783.” 268 Ind. 180, 200, 375 N.E.2d 1042, 1054.
I would affirm the judgment upon the basis of the unenforceability of the alleged contract and leave the issue of the constitutionality of the contract for another day.