The opinion
Opinion Concurring in Result
DeBruler, J.
In the court below there was no trial of the issue of whether the harsh and disparate treatment of bondsmen who are sole proprietors would be justified in furtherance *582 of the State’s interest in a dependable and honest bail bond industry. That issue could be decided only upon a consideration by the trial court of the relative nature, character and performance of people bondsmen and surety companies. A comparison of these two classes by the trial court either after a contested trial, a trial upon an agreed state of facts, or even upon facts judicially noticed and made part of the record, is the judicial act which is the sine qua non of a valid court judgment declaring the absence of a rational basis for the disparate treatment of the two classes. Here there was no trial, no stipulation of fact, and no fact judicially noticed, supporting the trial court judgment. In Howard County Board of Commissioners v. Kokomo City Plan Commission, (1975), 263 Ind. 282 , 330 N.E.2d 92 , this Court recently stated:
“Where the constitutional validity of a statute is drawn in issue, it is essential that the party bearing the burden on the issue produce a record before the court which justifies deciding the constitutional issue. Such a record provides the court with the necessary tools to make a rational determination. It includes a statement of the legal test to be applied in determining whether a particular constitutional provision has been violated, or citations of authorities which state that test. And it also includes any factual matter necessary to a proper application of the test. Without essential legal argument and factual matter, the court, particularly in a civil case, is justified in refusing to adjudge whether the statute complies with the commands of the constitutions, for in such case it does not ‘appear from the record that there is a substantial foundation for the allegation.’
Í ^ ^
Under the traditional equal protection test, the challenger must present a case which is sufficient to overcome the general presumption of constitutionality. The same party must present the court with the legal and factual means to determine whether the statutory scheme involving a classification is related to the purpose of the act. The party must put before the court a statement of the purpose and objective of the act for which it contends. The party must identify for the court the statutory characteristics which serve to differentiate the classes. And it must show that there is no *583 rational basis for dissimilarly treating classes having only those differences. This burden may be carried by demonstrating the identity of interest of the two classes which inheres in the subject matter of the legislation.” 330 N.E.2d at 96, 98 .
Here the parties agreed that there was no issue of fact to be determined and that the court should enter a judgment. As there were substantial issues of fact to be determined, that agreement should have been rejected.
Because of the absence of a factual determination of matter necessary to a valid judgment declaring this statute to be unconstitutional I would reverse and order a new trial.
Note. — Reported at 335 N.E.2d 219 .