THE COURTS AND TIPPING
The courts, in declaring such laws unconstitutional have proceeded upon the common law right of one citizen to give away his goods or property in the form of money to any other citizen. A tip, the judges say, represents a gift within the meaning of this common law right. But the instances of such altruism are exceedingly rare.
Even the judges who so decide know that the tips they give are not bona fide gifts out of the goodness of a generous heart. Tips are given, by the devotees of the custom, from a sense of obligation. They pretend to feel that the servitor actually has rendered a service for which the tip is payment. The proof of this is found in the fact that such persons never go about giving money gifts indiscriminately. Their gifts are exclusively to the employees of public service enterprises, showing that no thought of charity or generosity enters their minds.
The courts some day will come to the conclusion that a gift of money to any serving person is a special relation that is subject to the police power of the State. The special circumstances surrounding the gift will be taken into consideration. Then it will be seen that the gift was made for something the patron did not receive; for something for which he is required to pay twice and that the motives of the gift were pride, or fear or a sense of obligation falsely aroused.
While the courts are so scrupulous in preserving the common law right to make gifts, they might give consideration to the equally indubitable right of a patron to receive full value for his money, and to receive such value for one payment.
It may be, that to write an anti-tipping law that will stand the test of judges educated in the old school of thought about gratuities, legislators will have to approach the subject from this viewpoint of preserving a patron's common law right to satisfactory service for one payment. For instance, a law specifically defining the right of a patron to have food served, or to use a hotel room or sleeping car facilities, in short to patronize any public service place, with only one charge, and that to be paid exclusively to the proprietor, might strike an effective blow at "the universal heart of Flunkyism."
The courts will assert that the foregoing right exists without a special statute, and it does. Still the average citizen does not think of instituting a suit against a hotel, or swearing out a warrant against the manager or an employee to enforce his common law right to service at one price. If there is a specific statute against tipping there is a more tangible inducement to stand up for one's rights and there is more likelihood that redress will be granted. The defense of tipping on the "personal liberty" plea, like the defense of the liquor business on the same plea, will grow feebler and feebler until judges cease to take the aristocratic viewpoint.