The opinion
Dissenting Opinion by
Judge Mencer:
I respectfully dissent. The majority today has attempted to circumvent the standards by which Pennsylvania courts determine the constitutionality of zoning ordinances under Article I, §1 of the Constitution of Pennsylvania and the Fourteenth Amendment to the Constitution of the United States. The majority has placed the burden on those enacting the ordinance to coiné forward with proof and establish the validity of the ordinance. In reaching this position, the majority relies principally on Exton Quarries, Inc. v. Zoning. Board of Adjustment, 425 Pa. 43 , 228 A. 2d 169 (1967). However, at page 58 of Exton, the correct test was reaffirmed when Justice Roberts wrote: “A challenge to the constitutionality of a zoning ordinance must overcome the presumption of its validity.” National Land and Inn. Co. v. Easttown Township Bd. of Adjustment, 419 Pa. 504, 522 , 215 A. 2d 597, 607 (1965).
In Eller v. Board of Adjustment, 414 Pa. 1 , 198 A. 2d 863 (1964), the Supreme Court stated: “The principles which govern a constitutional attack upon a zoning ordinance once again have been recited in the recent case of Anstine v. Zoning Board of Adjustment, 411 Pa. 33, 36-37 , 190 A. 2d 712, 714-15 (1963), from which we quote: ■ ‘The burden of proving clearly and unmistakably the unconstitutionality of a legislative *479 enactment is npon the person so asserting: Best v. Zon-' ing Board of Adjustment, 393 Pa. 108 , 141 A.' 2d 606; Arcbbisliop O’Hara’s Appeal, 389 Pa. 35 , 131 A. 2d 587 .; Loomis v. Philadelphia School District Board of Education, 376 Pa. 428 , 103 A. 2d 769 ; Flynn y. Horst, 356 Pa. 20 , 51 A. 2d 54 . Accompanying this burden is the rule that . . where the constitutionality of zoning ordinances has been attacked, we have presumed that the municipal [or township] legislative body acted, with purpose to serve the public welfare and that all intend-ments are in favor of their action.” Bilbar Construction Co. v. Easttown Twp. Board of Adjustment, 393 Pa. 62, 71 , 141 A. 2d 851 ; Liggett’s Petition, 291 Pa. 109 , 139 A. 619 ; Whitpain Township v. Bodine, 372 Pa. 509 , 94 A. 2d 737 . The burden of proof in an attack on the constitutionality of a zoning ordinance, although heavy, can be maintained. . . .’”
It is elementary that a law or legislative enactment is presumed to be constitutional and the party who asserts that such is unconstitutional has the burden of proof. II. A. Steen Industries, Inc. v. Cavanaugh, 430 Pa. 10 , 241 A. 2d 771 (1968). One seeking to show á statute or ordinance unconstitutional must carry a heavy burden. Philadelphia v. Depuy, 431 Pa. 276 , 244 A. 2d 741 (1968) ; Commonwealth v. Life Assurance Co. of Pennsylvania, 419 Pa. 370 , 214 A. 2d 209 (1965) ( In the recent case of Atria, Inc. v. Mount Lebanon Township Board of Adjustment, 438 Pa. 317, 325 , 264 A. 2d 609, 613 (1970), the Supreme Court once again reiterated the standard: “As we stated in Eller v. Board of Adjustment, 414 Pa. 1 , 198 A. 2d 863 (1964), the burden of proof in an attack on the constitutionality of a zoning ordinance is upon the person so asserting, and that burden is a heavy one.”
Therefore, I must dissent from the majority’s attempt to reverse the traditional and 'well-established *480 burden of proof requirement which, has always been applicable to those making an attack on the constitutionality of a zoning ordinance. I would affirm the court below.