108 SALMON GEAR LIMITATION 



the public health but then spoke of horseshoers as being quite dif- 

 ferent : 



" 'Liberty' in its broad sense . . . means the right ... of one to use his 

 faculties in all lawful ways, to live and work when he will, to earn his 

 livelihood in any lawful calling, and to pursue any lawful trade or avoca- 

 tion. All laws, therefore, which impair or trammel these rights — which 

 limit him in his choice of a trade or profession — are infringements upon 

 his fundamental rights of liberty, which are under constitutional protec- 

 tion."i5i 



The court was even willing to distinguish between a plumber 

 and a horseshoer: 



"The plumber's business may concern and directly aflfect the health, 

 welfare, and comfort of the inhabitants who have occasion to call such 

 services into action in the community in which he plies his vocation, 

 while the pursuit of the trade of a horseshoer, under ordinary circum- 

 stances and normal conditions, would have no such affect [sic]."^^^ 



If faced with a showing that the safety of the traveling public 

 was furthered by a legislatively required examination for automobile 

 mechanics, is there any doubt but that the modern court would 

 uphold such legislation? 



The vice of this right-privilege test is its over-simplified, black- 

 or-white approach. The choice facing the court is not, as is frequently 

 put, whether the person has a right to some such broad sweep of 

 activity as to engage in the liquor business without restraint, or a 

 right to government employment under any and all circumstances, 

 or to be a plumber, a doctor, a horseshoer without regard to quali- 

 fications or other consideration of public welfare; nor is the question, 

 on the other hand, whether the government has an absolute, un- 

 fettered ability to deal as it chooses with those who wish to engage 

 in certain occupations. More realistically, the question is highly 

 specific: How does the particular regulation stand of its own merits, 

 when the need to be served for the benefit of the general public is 

 weighed against the curtailment of individual liberty which may 

 be involved. Certainly in the realm of the regulation of economic 

 activity generally, the courts have in reality applied only the more 

 practical tests previously outlined: Legitimate legislative objectives, 

 rational means to effect the objectives, classifications of persons upon 

 a basis reasonably conceivable as relating to those objectives. 



It will be noted that these cases so far discussed under this head- 



151. /J. at315;78Pac. at 902. 



152. /J. at 3 16, 3 17; 78 Pac. at 903. 



