I dissent.

The statute under review in this proceeding was not chiefly designed, as the prevailing opinion seems to indicate, “to protect employees in their health or safety or to preserve their morals or to promote their general welfare.” Its chief and obvious purpose was to deal with the relation or transaction arising between patrons of places of public resort for service, pleasure, or instruction, and the servitors in such places, wherein the former seeks to insure or reward promptness, fidelity, and courtesy on the part of the latter in the performance of some particular service by the giving to such servitor a sum of money popularly known as a “tip.” In the individual instance the offering is usually small and the service slight, but in the concrete a very large proportion of the general public is affected by what has grown to become an almost universal custom. Every person who travels in this age of travel or who patronizes hotels or restaurants or attends theaters, lectures, or other public places of amusement or instruction is affected by the custom of giving and receiving tips.

Whether or not it is a pernicious custom savoring of extortion, and furnishing a fertile soil for flunkeyism, favoritism, and partiality in respect to those elements of promptness, fidelity, and courtesy to which patrons of such public places or conveniences are equally entitled without the voluntary offering or the compulsion of such gratuities, the law in question does not attempt to determine. All that it does is to say that the employer and the servitor shall not make an agreement between themselves the effect of which would be to divert the gratuity given by the individual patron from the person for whom it was intended, and thus destroy the incentive to prompt, faithful, and courteous service which prompted the gift. Can it be said that a statute which has for its object the preservation of the spirit, intent, and effect of a relation and agreement to which in the concrete the general public is the most largely interested party is invalid when it seeks to prevent the proprietor and the servitor from making another agreement, to which the general public is not a party, the effect of which is to divert the consideration, destroy the incentive, and render ineffectual the relation created by the former agreement ? To my mind the right of freedom of contract does not extend so far as to embrace the freedom to make one contract which shall violate the spirit, intent, and obligation of another, particularly when that other is one of a class of like agreements so infinite in number as to affect the public at large.

In addition to this, however, the contract, the freedom to enter into which is upheld by the prevailing opinion, is one which is in its essence unconscionable and fraudulent, and is also one which in many, if not most, instances is devoid of that very element of freedom as to one of the parties by which it is sought to be justified. It is unconscionable because by its terms the employer, as the proprietor of the place or service in connection with which the tip is received by his employee, is not entitled to it, since he is already fully paid for whatever he furnishes by his regular charges, which cover and compensate him for the fullest measure of promptness, fidelity, and courtesy toward his patrons on the part of his employees. To permit him to exact more is not only to legalize an overcharge, but is also to encourage discriminations in the price and quality of his service as between those of his patrons who do and those who do not submit to the overcharge. It is fraudulent in respect to those patrons because it secretly aims to take from them that which they intended for another, and because its effect is to destroy the very incentive for doing those things for which the gratuity was given. The porter, the waiter, the bellboy, the chambermaid, who either willingly or unwillingly enters into a contract with his or her employer by which the tip is to be surrendered, has no longer any interest in doing promptly, faithfully, and courteously the service which the tip was given to insure, and to the extent of the inevitable lapses in the efficiency of such service the immediate- patron, and by extension the general public, is defrauded of its due.

The suggestion in the prevailing opinion that all this would be avoided by the simple expedient of having the proprietor post in his establishment a notice to the effect that all tips paid to his employees were by agreement to belong to the em ployer has, it is true, the merit of simplicity, but has nothing else to recommend it. That such notices, as a matter of common knowledge, have never been posted anywhere may be taken to be sufficient proof that the publication of such an agreement by that means would defeat the very purpose for which the agreement was made by stopping the flow of tips at once, since the public would have no interest in giving tips to servitors who had no longer any interest in doing the service with the degree of promptness, fidelity, and courtesy which the tip was given to induce. Besides, it is not the province of the courts to suggest similar ways of remedying admitted evils as a reason for refusing to uphold those which the legislature has seen fit to adopt in the exercise of its right of selection in the choice of remedies. In so far as the elements of freedom of contract, as between the proprietor and his employee, is concerned, upon which emphasis is laid in the prevailing opinion, it may be safely said that the trend of modern authority and decision is against the longer acceptance of that outworn fiction upon which Adam Smith predicated much of his impractical economics. How much is there of mutual freedom of contract between the proprietor, who has his choice and time in the matter of selecting his servants, and the average applicant for the position of waiter or bellboy or chambermaid, whose every hour of unemployment is a step nearer to starvation ? We have already banished this fiction from many of our statutes and decisions regulating the obligations and liabilities arising out of the relation of master and servant. Why, then, should we invoke it to defeat a piece of salutary legislation framed in the public interest and intended not only to forbid fraud upon the public, but also to prevent employers from compelling their employees, under the pretense of an agreement which would not as a rule, from the very nature of things, be voluntary, to yield up to their employers that which they have no right to appropriate? The illustration used in the prevailing opinion of the waiter agreeing with his tailor to turn over to him his tips in payment for a suit of clothes has no possible aptitude, since in that case the incentive is left in the waiter to earn the tips in order that he may the sooner enjoy the clothes, while no such incentive remains when by previous agreement or compulsion his employer appropriates his tips; and if it be argued that he would still strive to deserve the tip in order to hold the job, then what becomes of the argument based upon his supposititious freedom of contract?

The cases cited in support of the views expressed in the prevailing opinion have no application to the instant case, since their facts bear no similitude to those of the case at bar. The statute under review is novel, and the case is one of first impression. The subject with which the statute deals is one in which the public interest is so far involved as to bring it properly within the purview of the police powers of the state. It is practically conceded in the prevailing opinion that the legislature might well and safely have enacted a statute abolishing altogether the custom of tipping, and declaring it unlawful to permit this practice in any place of public resort, for the reason, as well stated therein, “that the custom of tipping has in many communities grown into proportions that astonish and dismay persons of moderate wealth, and that in many establishments one seeking accommodation must either tip or go unserved.” That the state has the almost unlimited power to regulate that which it has full power to destroy has been too frequently decided to require the citation of authority. The statute in question is a step in the way of such regulation which should be sustained upon all the grounds urged in its support.

The writ should, therefore, be discharged and the petitioner remanded.