Concurring Opinion by
Judge Manderino:I.concur with the result of the majority opinion and most of its reasoning and approach to the citizen’s relationship to his government when the constitutionality of an enactment is at issue. I do not agree, however, with the majority’s conclusion that the “burden” on the issue of constitutionality shifts in some cases such as this one from the citizen attacking the enactment to the municipality.
This court has recently been concerned in various cases with the problem of “burdens” in relation to the issue of constitutionality of enactments. I think it important therefore, to attempt to reconcile certain conflicting truisms which have been clear in the law for a lona; time.
*471It is clear that a court, when considering the constitutionality of a law (either a legislative or municipal “law”), should begin with a presumption of the law’s validity; It is also clear in the law that a court can declare a law unconstitutional “on its face.” This occurs only when the law “violates the fundamental law clearly, palpably, plainly, and in such manner as to leave no doubt or hesitation, in the minds of the court.” Bilbar Construction Co. v. Board of Adjustment., 393 Pa. 62, 141 A. 2d 851 (1958).
These two well-established doctrines really appear to contradict one another. If a court is to presume the validity of every law when it is challenged as unconstitutional, how can it ever be that the law is clearly, palpably and plainly unconstitutional on its face? .
The answer really involves an analysis of what a court is doing in relation to the validity presumption when it declares that a law is unconstitutional on its face for clear, plain, and palpable reasons.
When a court says that a law is unconstitutional because it is clearly, palpably, and plainly so, it is in effect stating that it needs no help from any party to conclude that the act is unconstitutional. How can a court do this? , Simply because a court and its judges do not sit in mental vacuums. Judges sit in the courts of the land as experienced human beings with a general knowledge of life. This includes a general knowledge which all of us have concerning what human conduct can possibly be related to the health, safety,..and morals of the community. The general knowledge of a judge makes it clear that certain laws which, attempt to restrict the freedom of an individual can have no relationship to the health, safety, or morals of the community. It is such a relationship which must be present before the law can be considered constitutionally valid.
*472In the first instance then, when a law is before a court on a challenge of constitutionality, the court begins its thinking process with a posture that the statute was passed by a legislative body and that the court should, therefore, presume that the legislative body," in its wisdom, did find a relationship between the conduct prohibited and the protection of the health, safety, and morals of the community. This presumption must be ¿resent in the first instant of the judicial thinking process, since legislative bodies are not required, except in very broad purpose clauses, to list and outline all of the “legislative facts” which formed the foundation for the legislative belief that the enacted law had a specific relationship to the protection of the health, safety, and morals of the community.
■ But the court, in almost the same breath that it speaks of respecting the general wisdom of the legislative body, must not act as “judicial robots” with no general knowledge of people or of what is necessary to protect the health, safety and morals of the society. If the general knowledge of the judges causes them to look at each other in bewilderment and mystery as to how the prohibited conduct could possibly be related to the protection of society, the judges are in effect saying '“Our general knowledge in its broadest sense makes it impossible for ús to accept a rational relationship between the law in question and the protection of society. It is clear, palpable, and plain to us, as judges, that there is no relationship between the law before us and the protection of society.” A court in that situation, must conclude, in the same breath with which it presumed validity, that the presumption falls in the face of its certainty that no relationship exists between the prohibited conduct and the protection of society. There can be no doubt that the legislature, or the enacting body, cannot constitutionally prohibit conduct unless *473it is shown that the prohibited conduct of a free citizen is somehow related to the protection of the society.
A court is capable and must be capable of the kind of analysis outlined above even before it hears any reason from either party to the litigation as to the relationship between the prohibited conduct and the protection of the society. A court is in effect using its own knowledge to judicially notice that.there is no relationship between the prohibited conduct and the protection of society, which is exactly the allegation made by the citizen in challenging constitutionality. ' ■
Thus a legislative enactment is presumed valid by a court until the court is convinced that there :is no relationship between the prohibited conduct and the protection of society. In some cases, although these may be rare, the court is thus persuaded without any assistance from either party to the lawsuit. It is. of course necessary that one of the parties to the lawsuit produce evidence so that the court can identify the, law in question and the conduct of the citizen-litigant whieh has been prohibited by the law. Once this is done by the citizen-litigant, the court is always free to conclude that there is no relationship between the prohibited conduct and the protection of society.
Obviously, a court without assistance from .either party to the litigation would very rarely conclude that there is no relationship between the prohibited conduct and the protection of society. Because that situation is rare does not mean that it cannot exist or has not existed.
A legislative enactment, for example, which prohibited one-family dwellings anywhere in the community, as part of a zoning ordinance which had a stated general purpose to provide an improved environment for the society, would certainly, in the present state of ■general human knowledge, be declared unconstitution*474al by a court. Can there be any doubt that this would be so even if neither party to the litigation had. produced. evidence as to the relationship or lack of relationship between the prohibition and society’s health, safety .and morals?. In order to establish a justiciable controversy, and avoid an advisory opinion, the court would require a citizen to allege the existence of the law and also that the citizen-litigant had been restricted in his freedom because of the law; The court:then would address itself to the presumed validity of the law, but in. the same instant, call upon the general knowledge of .the judges to conclude that there is absolutely no relationship between the restriction prohibiting one-family dwellings and the protection of society.
If a court, however, has any doubt whatsoever;, it should not allow the presumption of validity to fall on the basis of the court’s own general knowledge. The court should not judicially notice that there exists no relationship between the prohibited conduct and the protection of society unless there is no doubt whatsoever in the court’s mind. This occurs when it is clear, plain, and palpable to the court, without any doubt, that the required relationship does not exist.
Thus, when we say that one of two litigants has .the.' búrden of proving the unconstitutionality of an enactment, we are simply stating that if the court is uncertain as to the necessary relationship between the prohibited conduct and the protection of society, the party with the burden will not prevail and the legislative enactment will be considered valid. This does not mean that a court cannot be convinced of the lack of the. required relationship as a result of its own knowledge. Thus, the party with the burden of proof, in rare cases, may have sustained that burden merely by bringing'to the court’s attention the existence of the law and *475facts showing that the citizen-litigant’s freedom has been restricted. Ms burden of proof is sustained because the court decides that within its general knowledge it has such facts that convince it that the required relationship between the law and the protection of society is not present.
In other words,, the party having the burden of proof may sustain that burden with the proper “assistancé” of the court, which uses its own knowledge of human affairs and which refuses to ignore that which appears to be clearly, plainly, or palpably unreasonable.
In this case, the citizen has produced evidence as to the existence of a law which prohibits gas stations in a given municipality. The citizen has also produced evidence that this law has restricted his freedom in the use of his property. The court can look at the face of the enactment and conclude that the presumed validity of a total prohibition of gas stations falls because the court can judicially notice the total absence of’ any facts in general human knowledge which would rationally sustain any valid protection of the society by the prohibition of gas stations.
Even though a court is in such a state of mind and the presumed validity has fallen because of the court’s general knowledge of the lack of any rational relationship, the court should of course hesitate, and allow either side to the controversy to attempt to persuade the court that there is or is not a relationship between the prohibited conduct and the protection of society. The burden of proof however, does not shift from the citizen to the municipality. It always remains with the citizen. But this burden has been sustained when the court’s general knowledge tells it that there is no relationship between the prohibited conduct and the protection of society. The municipality, of course, is free at all times to attempt to establish that there is a con*476nection. If tbe municipality fails to do so, tbe enactment is not declared unconstitutional because of tbe failure of tbe municipality to sustain any burden of proof. Rather tbe enactment is declared unconstitutional because tbe municipality’ presented no evidence to dispel tbe court’s existing state of mind that there is no rational connection between tbe enactment and the protection of the society. In some cases, tbe court arrives at this’state of mind because-of its general knowledge and in other, cases it arrives at this state of mind because of evidence which bás been presented by the: citizen.. It makes no difference bow tbe court arrives at tbe conclusion that clearly, palpably, and plainly there is no connection between tbe prohibited conduct and tbe protection of tbe society. Tbe important thing is that tbe court has so concluded.
■ Sitting as a judge in this case and refusing to sit as a judicial robot in a mental vacuum, I can only conclude that my general knowledge of human affairs, in its broadest context, gives me no clue as to any rational basis which would call for the protection of society by tbe total prohibition of gas stations. In' such a state óf mind, I would have been open to arguments by tbe municipality that my general knowledge was in error.1 No such arguments were presented. There were statements made to- tbe effect that a relationship did exist between- tbe prohibition of gas stations and tbe health, safety, and morals - of the community. Merely stating tbe conclusion, however, is not persuasive. Such a conclusion can be . stated about any enactment. Reasons must be given tó show what it is that society is protected from, or what welfare of society is promoted by the prohibition.
When a court from its own general knowledge knows that a particular activity can be conducted and is generally -conducted in society without any adverse *477effect on the health., safety, and morals of the community, it must declare a total prohibition of such activity within, a given municipality as unconstitutional unless the . court is persuaded by the particular municipality that anywhere in that municipality such activity would endanger the health, safety, and morals of that municipality. This was the thrust of Exton Quarries, Inc. v. Zoning Board of Adjustment, 425 Pa. 43, 228 A. 2d 169 (1967), where a municipality’s total prohibition of quarries was struck down as unconstitutional, since the municipality did not persuade the court that there existed a rational relationship between the protection of its municipality and the people therein and the prohibition of quarrying. This is not to say that any burden has shifted from, one place to another. The burden was and remained upon the citizen. But the burden had been sustained by the citizen when the court, using its general knowledge, clearly, palpably, and plainly could see no rational connection between the prohibited conduct and the protection of society.
In any lawsuit, the party that does not have the burden of proof always risks nonpersuasion of the ultimate tribunal if the party without the burclen of proof remains silent or attempts to persuade the ultimate tribunal but fails to do so.
In this case, the Beaver Gasoline Company has sustained its burden of proof. The fact that it was aided by the knowledge of the judges themselves that a total prohibition of gas stations is not related to the protection of society does not matter. The total, prohibition of gas stations in the Borough of Osborne was unconstitutional.
1. Nursery-horticultural.
2. Apartments in connection with business use.
3. Professional or business offices, agencies, or studios.
4. Personal service shops, including tailor, barber, beauty, dressmaking, shoe repair, hand laundry, or similar shops.
5. Retail stores, shops for custom work or for making articles to be sold at retail on the premises.
*4816. Offices of veterinarian and kennels.
7. Telephone, telegraph and express offices, railroad station or auto bus passenger station.
8. Any commercial use of the same general character as any of the above permitted uses when authorized as a special exception, but in no case may a building be erected, altered or used, or a lot be occupied or used for any trade, commercial use, or business that is noxious or offensive by reason or odor, dusts, smoke, gas, vibration, illumination, noise, or generation of excess traffic.
9. Accessory use on the same lot with, and customarily incidental to, any of the above permitted uses.
10.Commercial signboards not exceeding twenty (20) square feet in area used in connection with a permitted business on the property.