1. Legislative determinations are entitled to great weight, but
it is always open to interested parties to show that the
legislature has transgressed the limits of its power. P.
270 U. S.
2. Invalidity of a legislative act may be shown by things that
may be judicially noticed, or by facts established by evidence, the
burden being on the attacking party to establish the invalidating
facts. P. 270 U. S.
Page 270 U. S. 403
3. A state law (Pa.Ls.1923, c. 802) forbidding the use, in
comfortables, of shoddy, even when sterilized, is so far arbitrary
and unreasonable that it violates the due process clause of the
Fourteenth Amendment. Pp. 270 U. S. 410
270 U. S.
4. Without considering whether the mere failure of the Act to
prohibit the use of other filling materials is sufficient to
invalidate the prohibition of the use of shoddy as a violation of
the equal protection clause, the number and character of the things
permitted to be used in such manufacture properly may be taken into
account in deciding whether the prohibition of shoddy is a
reasonable and valid regulation or is arbitrary and violative of
the due process clause. P.
270 U. S. 412
5. Such a prohibition cannot be sustained, as a health measure,
in face of evidence showing that shoddy, even when composed of
second-hand materials, is rendered harmless by sterilization, and
in face of permission in the same Act to use numerous other kinds
of materials if sterilized when second-hand. P. 270 U. S.
6. Nor can such prohibition be sustained as a measure to prevent
deception, since deception may be avoided by adequate regulations.
P. 270 U. S.
7. Constitutional guaranties cannot be made to yield to mere
convenience. P. 270 U. S.
8. Every opinion of the Court is to be read with regard to the
facts of the case and the question actually decided. Powell v.
Pennsylvania, 127 U. S. 678
distinguished. P. 270 U. S.
3 F.2d 333 affirmed.
Appeal from a decree of the district court enjoining the
defendant (appellant), an official of Pennsylvania, from enforcing
against the plaintiff (appellee) a law of that state regulating the
manufacture and sale of bedding, insofar as it forbade the use of
shoddy. Plaintiff manufactured comfortables in Connecticut, using
shoddy made of new and second-hand materials, and sold its product
in Pennsylvania. See also
266 U.S. 588.
Page 270 U. S. 408
MR. JUSTICE BUTLER delivered the opinion of the Court.
Appellee is a Connecticut corporation, and for more than 50
years it and its founders have manufactured comfortables in that
state, and have sold them there and in other states. An Act of the
Legislature of Pennsylvania, approved June 14, 1923 regulates the
manufacture, sterilization, and sale of bedding. Section 1 of the
act prescribes the following definitions: "Mattress" means
"any quilted pad, mattress, mattress pad, mattress protector,
bunk quilt or box spring, stuffed or filled with excelsior, straw,
hay, grass, corn husks, moss, fibre, cotton, wool,
Page 270 U. S. 409
hair, jute, kapok, or other soft material."
"Pillow," "bolster," or "feather bed" means "any bag, case, or
covering made of cotton or other textile material, and stuffed or
filled with" any filler mentioned in the definition of "mattress,"
or with feathers or feather down. The word "comfortable" means
"any cover, quilt, or quilted article made of cotton or other
textile material, and stuffed or filled with fibre, cotton, wool,
hair, jute, feathers, feather down, kapok, or other soft
"Cushion' means 'any bag or case made of leather, cotton, or
other textile material, and stuffed or filled with any filler,
except jute and straw, mentioned in the definition of 'pillow,' or
with tow. The word 'new,' as used in the Act, means 'any material
or article which has not been previously manufactured or used for
any purpose. 'Secondhand' means 'any material or article of which
prior use has been made.' 'Shoddy' means 'any material which has
been spun into yarn, knit or woven into fabric, and subsequently
cut up, torn up, broken up, or ground up."
Section 2 provides:
"No person shall employ or use in the making, remaking, or
renovating of any mattress, pillow, bolster, feather bed,
comfortable, cushion, or article of upholstered furniture: (a) any
material known as 'shoddy,' or any fabric or material from which
'shoddy' is constructed; (b) any second-hand material, unless,
since last used, such second-hand material has been thoroughly
sterilized and disinfected by a reasonable process approved by the
commissioner of labor and industry; (c) any new or second-hand
feathers, unless such new or second-hand feathers have been
sterilized and disinfected by a reasonable process approved by the
commissioner of labor and industry."
Punishment by fine or imprisonment is prescribed for every
violation of the Act, and each sale is declared to be a separate
The Act took effect January 1, 1924. Appellant is charged with
its enforcement, and threatened to proceed
Page 270 U. S. 410
against the appellee and its customers. January 29, 1924,
appellee brought this suit to enjoin the enforcement of the Act on
the grounds, among others, that, as applied to the business of
appellee, it is repugnant to the due process and equal protection
clauses of the Fourteenth Amendment. An application under § 266 of
the Judicial Code for a temporary injunction was denied. The decree
was affirmed by this Court. 266 U.S. 588. Later, defendant answered
and there was a trial at which much evidence was introduced. The
district court found that the statute infringes appellee's
constitutional rights insofar as it absolutely prohibits the use of
shoddy in the manufacture of comfortables, and, to that extent, the
decree restrains its enforcement. This appeal is under § 238 of the
The question for decision is whether the provision purporting
absolutely to forbid the use of shoddy in comfortables violates the
due process clause or the equal protection clause. The answer
depends on the facts of the case. Legislative determinations
express or implied are entitled to great weight, but it is always
open to interested parties to show that the legislature has
transgressed the limits of its power. Penna. Coal Co. v.
Mahon, 260 U. S. 393
260 U. S. 413
Invalidity may be shown by things which will be judicially noticed
(Quong Wing v. Kirkendall, 223 U. S.
, 223 U. S. 64
by facts established by evidence. The burden is on the attacking
party to establish the invalidating facts. See Minnesota Rate
Cases, 230 U. S. 352
230 U. S.
For many years prior to the passage of the Act, comfortables
made in appellee's factories had been sold in Pennsylvania. In
1923, its business in that state exceeded $558,000, of which more
than $188,000 was for comfortables filled with shoddy. About 5,000
dozens of these were filled with shoddy made of new materials, and
about 3,000 dozens with second-hand shoddy. Appellee
Page 270 U. S. 411
makes approximately 3,000,000 comfortables annually, and about
750,000 of these are filled with materials defined by the Act as
shoddy. New material from which appellee makes shoddy consists of
clippings and pieces of new cloth obtained from cutting tables in
garment factories; second-hand shoddy is made of second-hand
garments, rags, and the like. The record shows that annually many
million pounds of fabric, new and second-hand, are made into
shoddy. It is used for many purposes. It is rewoven into fabric,
made into pads to be used as filling material for bedding, and is
used in the manufacture of blankets, clothing, underwear, hosiery,
gloves, sweaters and other garments. The evidence is to the effect
that practically all the woolen cloth woven in this country
contains some shoddy. That used to make comfortables is a different
grade from that used in the textile industry. Some used by appellee
for that purpose is made of clippings from new woolen underwear and
other high grade and expensive materials. Comfortables made of
second-hand shoddy sell at lower prices than those filled with
Appellant claims that, in order properly to protect health,
bedding material should be sterilized. The record shows that, for
the sterilization of second-hand materials from which it makes
shoddy, appellee uses effective steam sterilizers. There is no
controversy between the parties as to whether shoddy may be
rendered harmless by disinfection or sterilization. While it is
sometimes made from filthy rags, and from other materials that have
been exposed to infection, it stands undisputed that all dangers to
health may be eliminated by appropriate treatment at low cost. In
the course of its decision, the district court said: "It is
conceded by all parties that shoddy may be rendered perfectly
harmless by sterilization." The Act itself impliedly determines
that proper sterilization is practicable and effective. It permits
the use of second-hand
Page 270 U. S. 412
materials and new and second-hand feathers when sterilized, and
it regulates processes for such sterilization.
There was no evidence that any sickness or disease was ever
caused by the use of shoddy, and the record contains persuasive
evidence, and by citation discloses the opinions of scientists
eminent in fields related to public health, that the transmission
of disease-producing bacteria is almost entirely by immediate
contact with, or close proximity to, infected persons; that such
bacteria perish rapidly when separated from human or animal
organisms, and that there is no probability that such bacteria or
vermin likely to carry them survive after the period usually
required for the gathering of the materials, the production of
shoddy, and the manufacture and the shipping of comfortables. This
evidence tends strongly to show that, in the absence of
sterilization or disinfection, there would be little, if any,
danger to the health of the users of comfortables filled with
shoddy, new or second-hand, and confirms the conclusion that all
danger from the use of shoddy may be eliminated by
The state has wide discretion in selecting things for
regulation. We need not consider whether the mere failure to forbid
the use of other filling materials that are mentioned in the Act is
sufficient, in itself, to invalidate the provision prohibiting the
use of shoddy as a violation of the equal protection clause. But
the number and character of the things permitted to be used in such
manufacture properly may be taken into account in deciding whether
the prohibition of shoddy is a reasonable and valid regulation or
is arbitrary and violative of the due process clause. Shoddy-filled
comfortables made by appellee are useful articles for which there
is much demand, and it is a matter of public concern that the
production and sale of things necessary or convenient for use
should not be forbidden. They are to be distinguished
Page 270 U. S. 413
from things that the state is deemed to have power to suppress
as inherently dangerous.
Many states have enacted laws to regulate bedding for the
protection of health. Legislation in Illinois (Laws 1915, p. 375)
went beyond mere regulation, and prohibited the sale of second-hand
quilts or comfortables, even when sterilized, or when remade from
sterilized second-hand materials. In People v. Weiner,
Ill. 74, the state supreme court held that to prohibit the use of
material not inherently dangerous and that might be rendered safe
by reasonable regulation transgresses the constitutional protection
of personal and property rights.
The appellant insists that this case is ruled by Powell v.
Pennsylvania, 127 U. S. 678
the cases are essentially different. A law of Pennsylvania
prohibited the manufacture, sale, or possession for sale, of
oleomargarine. An indictment against Powell charged a sale and
possession with intent to sell. At the trial he admitted the
allegations and, for his defense, offered to prove certain facts
which were excluded as immaterial. The question for decision was
whether these facts were sufficient to show that, as applied, the
law was invalid. Mr. Justice Harlan, speaking for the Court, said
(p. 127 U. S. 682
that the purpose of these offers of proof was to:
"show that the article sold was a new invention, not an
adulteration of dairy products, nor injurious to the public health,
but wholesome and nutritious as an article of food. . . . [p.
127 U. S. 684
]. It will be
observed that the offer in the court below was to show by proof
that the particular articles the defendant sold, and those in his
possession for sale, in violation of the statute, were in fact
wholesome or nutritious articles of food. It is entirely consistent
with that offer that many, indeed that most, kinds of oleomargarine
butter in the market contain ingredients that are or may become
injurious to health. The court cannot say from anything of which it
may take judicial cognizance that
Page 270 U. S. 414
such is not the fact. Under the circumstances disclosed in the
record, and in obedience to settled rules of constitutional
construction, it must be assumed that such is the fact."
And see Powell v. Commonwealth,
114 Pa.St. 265, 279,
"Laws frequently are enforced which the court recognizes as
possibly or probably invalid if attacked by a different interest or
in a different way."
Quong Wing v. Kirkendall, supra, 223 U. S. 64
This is well illustrated by the Powell
case, compared with
Schollenberger v. Pennsylvania, 171 U. S.
. Every opinion is to be read having regard to the
facts of the case and the question actually decided.
6 Wheat. 264, 19 U. S. 399
The facts clearly distinguish this case from the Powell
case. There it was assumed that most kinds of oleomargarine in the
market were or might become injurious to health. Here it is
established that sterilization eliminates the dangers, if any, from
the use of shoddy. As against that fact, the provision in question
cannot be sustained as a measure to protect health, and the fact
that the Act permits the use of numerous materials, prescribing
sterilization if they are second-hand, also serves to show that the
prohibition of the use of shoddy, new or old, even when sterilized,
is unreasonable and arbitrary.
Nor can such prohibition be sustained as a measure to prevent
deception. In order to ascertain whether the materials used and the
finished articles conform to its requirements, the Act expressly
provides for inspection of the places where such articles are made,
sold or kept for sale. Every article of bedding is required to bear
a tag showing the materials used for filling and giving the names
and addresses of makers and vendors, and bearing the word
"second-hand" where there has been prior use, and giving the number
of the permit for sterilizing and disinfecting where second-hand
materials or feathers are used for filling. Obviously, these
regulations or others
Page 270 U. S. 415
that are adequate may be effectively applied to shoddy-filled
The constitutional guaranties may not be made to yield to mere
convenience. Schlesinger v. Wisconsin, ante,
270 U. S. 230
business here involved is legitimate and useful, and, while it is
subject to all reasonable regulation, the absolute prohibition of
the use of shoddy in the manufacture of comfortables is purely
arbitrary, and violates the due process clause of the Fourteenth
Amendment. Adams v. Tanner, 244 U.
, 244 U. S. 596
Meyer v. Nebraska, 262 U. S. 390
Burns Baking Co. v. Bryan, 264 U.
MR. JUSTICE HOLMES, dissenting.
If the Legislature of Pennsylvania was of opinion that disease
is likely to be spread by the use of unsterilized shoddy in
comfortables, I do not suppose that this Court would pronounce the
opinion so manifestly absurd that it could not be acted upon. If we
should not, then I think that we ought to assume the opinion to be
right for the purpose of testing the law. The legislature may have
been of opinion further that the actual practice of filling
comfortables with unsterilized shoddy gathered from filthy floors
was widespread, and this again we must assume to be true. It is
admitted to be impossible to distinguish the innocent from the
infected product in any practicable way when it is made up into the
comfortables. On these premises, if the legislature regarded the
danger as very great and inspection and tagging as inadequate
remedies, it seems to me that, in order to prevent the spread of
disease, it constitutionally could forbid any use of shoddy for
bedding and upholstery. Notwithstanding the broad statement in
Schlesinger v. Wisconsin
the other day, I do not suppose
that it was intended to overrule Purity Extract & Tonic Co.
v. Lynch, 226 U. S. 192
the other cases to which I referred there.
Page 270 U. S. 416
It is said that there was unjustifiable discrimination. A
classification is not to be pronounced arbitrary because it goes on
practical grounds and attacks only those objects that exhibit or
foster an evil on a large scale. It is not required to be
mathematically precise and to embrace every case that theoretically
is capable of doing the same harm. "If the law presumably hits the
evil where it is most felt, it is not to be overthrown because
there are other instances to which it might have been applied."
Miller v. Wilson, 236 U. S. 373
236 U. S. 384
In this case, as in Schlesinger v. Wisconsin,
I think that
we are pressing the Fourteenth Amendment too far.
MR. JUSTICE BRANDEIS and MR. JUSTICE STONE concur in this