Concurring Opinion
DeBruler, J.If appellants had objected to the summary procedure adopted by the trial court, either in the trial court or in their brief on appeal, I would vote to remand this case to the trial court for a full trial. In every case dealing with a constitutional claim, an unrestricted opportunity should be afforded the litigants to completely present the facts necessary to support their claims. However, in my view of the record and briefs in this case, appellants have never contended that *243the trial court committed error in making a summary disposition of their constitutional claim. Thus, because of the posture of this case, I would concur in the result of the majority opinion wherein it holds that the trial court did not commit error in this case by following a summary type procedure.
An extraordinary burden rested on appellants to establish by proof that this classification is arbitrary and unreasonable. That burden was described in Borden’s Farm Products v. Baldwin (1934), 293 U. S. 194, 55 S. Ct. 187, 79 L. Ed. 281, as follows:
“Respondents invoke the presumption which attaches to legislative action. But that is a presumption of fact, of the existence of factual conditions supporting the legislation. As such it is a rebuttable presumption [cases cited]. It is not a conclusive presumption, or a rule of law which makes legislative action invulnerable to constitutional assault. Nor is such an immunity achieved by treating any fanciful conjecture as enough to repel attack. When the classification made by the legislature is called in question, if any state of facts reasonably can be conceived that would sustain it, there is a presumption of the existence of that state of facts, and one who assails the classification must carry the burden of showing by a resort to common knowledge of other matters which may be judicially noticed, or to other legitimate proof, that the action is arbitrary, [cases cited] ” 293 U. S. at 209.
Appellants plead in their complaint that they are permanent residents and registered voters of the territory sought to be annexed and that they own personal property located in the territory of substantial value. They also plead that their stake in the proposed annexation is equal to that of owners of real estate in the territory and that they have an equal interest in taxation, schools, roads, storm or sanitary sewers, water, electricity, fire and police protection, sidewalks and curbs, garbage collection and recreational programs. I would affirm the trial court judgment on the grounds that these allegations in the complaint are too general and unsupported to satisfy *244appellants5 extraordinary burden of establishing that this classification was arbitrary and unreasonable.
Note. — Reported in 273 N. E. 2d 856.