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The Itching Palm, A Study of the Habit of Tipping in America, a non-fiction book by William R. Scott |
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Chapter 15. Laws Against Tipping |
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_ CHAPTER XV. LAWS AGAINST TIPPING Efforts to abolish or regulate the custom of tipping have been made in the Legislatures of practically all of the States. Often after passing legislative barriers the laws have fallen before Executive vetoes, so that scarcely half a dozen States now have statutes on the subject. The State of Washington adopted a law prohibiting tipping, but it was so generally ignored that the Legislature of 1913 repealed it. This shows that, at first blush, a social custom of long standing has a stronger influence upon the people than a conscientious conviction registered in a new law. Yet, as abortive as the legal campaign against tipping has been thus far, the constant recurrence of the issue in the Legislatures, and the voluntary attempts at regulation being made by hotels and other public service enterprises, show that the propaganda is making headway and that there are great moral resources in the people ready to be called into action.
The opposition to tipping is unorganized, undisciplined and inarticulate, while the beneficiaries of the custom, with a munificent tribute to nerve activity, are upon a highly efficient basis of operation. Even with a law at his back to stiffen his moral resolution, the average citizen feels more afraid of violating the custom than of violating the law. It is because of the intangible nature of the custom from his viewpoint. A waiter can do so many things to annoy a non-tipping patron that the patron cannot present in the form of a concrete complaint, yet which are quite real and irritating. The upshot is that the patron swallows his conscientious objection to the custom and pays the tribute for fair service. He knows that a failure to tip means a struggle three times a day in the dining room for his rights and the same struggle at every point of contact with the itching palm. Rather than have his efficiency interfered with by the mental disturbance such rows create, he pays the price. But this type of man will make excellent material in the regular ranks even if he lacks the initiative of a lone hand against big odds. When the movement against tipping reaches the stage where a spokesman and leader is produced, all the latent opposition will spring into effective cooeperation.
Some of the laws are aimed exclusively at the takers of tips and others at the givers as well. The Iowa law is in the first class, as follows: Sec. 5028-u. Accepting or Soliciting Gratuity or Tip. Every employee of any hotel, restaurant, barber shop, or other public place, and every employee of any person, firm partnership, or corporation, or of any public service corporation engaged in the transportation of passengers in this state, who shall accept or solicit any gratuity, tip or other thing of value or of valuable consideration, from any guest or patron, shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not less than five dollars, or more than twenty-five dollars, or be imprisoned in the county jail for a period not exceeding thirty days. This law makes the mere acceptance of a tip illegal and it also heads off any attempt to circumvent the law on a technicality by prohibiting the acceptance of "other thing of value or of valuable consideration."
The Wisconsin bill, which the Governor vetoed on the ground that it curtailed "personal liberty" was intended to penalize the giving of the tip, and was worded as follows: Sec. 45751. Every employee of any hotel, restaurant or public place and every employee of any person, firm or of any public service corporation engaged in the transportation of passengers or the furnishing of food, lodging and other accommodations to the public in this state who shall receive or solicit any gratuity or tip from any guest or patron shall be guilty of a misdemeanor. Every person who shall give or offer any gratuity or tip to any person or employee prohibited from receiving or soliciting the same by the provisions of this section shall also be guilty of a misdemeanor. The demand for this bill was so strong among the members of the Legislature that it almost was passed over the Governor's veto. The provision that a copy of the law must be posted in the places where the public comes into contact with the itching palm is a most essential one. It reassures patrons to see it and gives them a present stimulus for standing upon their right to good service for one payment.
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.
The South Carolina law goes a step ahead of either the Iowa law or the Wisconsin bill in the provision that the employer shall not permit the custom of tipping, in addition to provisions prohibiting the giving or receiving of tips by patrons or employees. The law follows: "It shall be unlawful in this State for any hotel, restaurant, cafe, dining car company, railroad companies, sleeping car company or barber shop to knowingly allow any person in its employ to receive any gratuity commonly known as a tip, from any patron or passenger, and it shall be unlawful for any patron of any hotel, restaurant, cafe, dining car or for any passenger on any railroad train or sleeping car to give any employee any such gratuity and it shall be unlawful for any employee of any hotel, restaurant, cafe, dining car, railroad company, sleeping car company or barber shop to receive any such gratuity. This South Carolina law was an evident effort to cover the custom of tipping in a manner that would permit of no evasions. It defines a "tip" and prohibits surreptitious gratuities and makes employer, employee and patron equally liable to prosecution. Yet, it falls short of an ideal law because its operations are limited to seven places frequented by the public and does not cover private places where the itching palm flourishes, such as apartment houses and boarding houses. To stop tipping in hotels, restaurants, cafes, dining cars, railroad stations and cars, sleeping cars or barber shops will be a long stride in the right direction, but the need of stopping tipping to messenger boys, janitors and other employees of apartment houses, maids and waitresses in boarding houses, garbage collectors, mail carriers and policemen among government employees, trunk transfermen, guides, steamship employees and others too numerous to cite, is fully as urgent.
The ideal act will be evolved through these repeated approximations and through experience. In a broad outline it must include (1) a clear definition of a tip, (2) a statement of a patron's right to service for one payment exclusively to the proprietor, (3) a prohibition against subterfuges in the charges whereby patrons may give tips, (4) the wages paid by an employer to be considered as presumptive evidence of his attitude toward tipping, (5) a requirement that employers shall give patrons a definite understanding of the service to which they are entitled, (6) any actual extra service to be compensated for direct to employer after being appraised and charged for by the employer, (7) the giving of money or gifts to employees to be taken out of the class of "charity" and "personal liberty," (8) the employer, the employee and the patron to be subject to the same penalty for violating the law and the conviction of any one of the three to be followed automatically by the conviction of the other two for the same offense, (9) the law to be applicable to any employer and any employee in any relation with the public or with individuals, in private home or public place, (10) a prohibition against operating any convenience for the public in which the rate of payment shall be left to the whim of the patron, such as cloak rooms, the tariffs to be displayed and exacted impartially of every patron if the employer assumes that patrons must pay extra for the service, (11) an adequate provision for acquainting patrons with the law through posting it or otherwise directing their attention to it, (12) the granting of licenses to operate public service places only upon condition that gratuities are not to be permitted, directly or indirectly, (13) the granting to a patron who has been denied fair service of redress in addition to the punishment of the guilty employee and employer, (14) an adequate scale of penalties, fine or imprisonment for any violation of any part of the law. It is not presumed that if a law were drawn to embody the foregoing provisions that the tipping custom would be strangled. Only actual tests in the courts will produce the ultimate intent. Of course, if employers and employees and patrons were actuated by a desire to maintain their relations upon a basis of self-respect so circumstantial a law would be unnecessary, but many of them are not thus actuated and a minute restraint will be imperative at the outset and until a normal ideal of democracy is cultivated.
The bill introduced in the 1915 session of the Nebraska Legislature does not penalize the patron for giving gratuities and seems to be aimed at the practice of "split commissions" as well as at tipping. It has a maximum fine of one hundred dollars, or imprisonment of sixty days and the employers only are specified for conviction. The act follows: "No employee or servant shall accept, obtain or agree to accept, or attempt to obtain, from any person, for himself or for any other person, any gift, gratuity or consideration as an inducement to perform or as a reward for having performed any duty or service for which such employee or servant has been employed or is to be paid by the employer or master, firm or corporation of such employee or servant. THE TENNESSEE LAW The Tennessee law was adopted upon the especial solicitation of the traveling salesmen of the State. These men live constantly in touch with the itching palm and find the tribute not only burdensome to themselves but to their employers. The act is much like the South Carolina law, and a notable feature is Section 6: "That it shall be the duty of the circuit judges and the courts of like jurisdiction to especially call the attention of the grand jury to the provisions of this act at each term of the court."The foregoing provision makes it certain that, even if patrons are timid about obeying the law and if employers and employees disregard it, the fight against the custom will go right on, just as does the fight against bootlegging after saloons have been banished from a city. The Tennessee law also has a more elaborate scale of fines, as the following section shows: "Be it further enacted that any hotel, restaurant, cafe, barber shop, dining car, railroad or sleeping car company, and the manager, officer or agent of the same in charge, violating this act or wilfully allowing the same to be violated in any way, shall each be subject to a penalty of not less than $10 nor more than $50 for each tip allowed to be given. If any person shall give an employee any gratuity or tip each person shall be subject to a fine of not more than $25 and not less than $5 for each offense. If any of the above employees shall receive a gratuity or tip he or she shall be subject to a fine of not more than $25 nor less than $5 for each offense. Should any hotel, restaurant, cafe, barber shop, dining car, railroad company or sleeping car company fail, neglect or refuse to post notice of this act as required herein, such hotel, restaurant, cafe, barber shop, dining car, railroad or sleeping car company shall be subject to a fine not to exceed $100 for each day it shall fail." Naturally if this law is enforced with any fidelity by the grand juries, not to mention such actions as may be instituted by the public, tipping in Tennessee in the specified public service place will become extinct, or assume a guise not covered by the law. But if tipping is restrained only in the seven places enumerated and allowed to be practiced unrestrained everywhere else, only a limited industrial democracy will be attained, and the part of the custom left alive will spread by its own insidious processes to the places preempted.
When the public conscience is fully aroused to the need of stifling this custom, the legal mind will be able to draw up a law that will prevent tipping anywhere and under any circumstances. The Illinois law is a particular example of a half-way measure in that it seeks only to prohibit the practice of leasing tipping concessions to employees. "That it shall be unlawful for the owner, proprietor, lessee, superintendent, manager or agent in any hotel, restaurant, eating house, barber shop, theatre, store building, office building, factory, railroad, street railroad, fair ground, baseball or football ground, hall used for public meetings or entertainments, or any other building, office, or space which is a place of public accommodation or public resort, to rent, lease or permit to be used any part, space or portion thereof, for any trade, calling or occupation, or for the exercise of any privilege by any person, company, partnership or corporation for the purpose of accepting, demanding or receiving, directly or indirectly, from the customers, patrons or people who frequent such places of public accommodation or public resort, gratuities or donations, commonly called tips, in addition to the regular, ordinary and published rate of charge for work performed, materials furnished or services rendered, provided, that nothing in this section contained shall be construed to prohibit any employee or servant from accepting or receiving gratuities or donations commonly called tips, if such gratuities or donations are not accounted for, paid over, or delivered, directly, or indirectly, in whole or in part, to any person, company, partnership or corporation, but are retained by such employee or servant, as and for his absolute and individual property. LEGALIZED ROBBERY This Illinois law is an instance of an American Commonwealth specifically and deliberately recognizing tipping as legal and right. It turns loose the tip-pirates upon the public with full governmental sanction, but stipulates that in their piracy they shall not organize into a trust, as they had done in Chicago and in all large cities. The Illinois law can be commended to the extent that it seeks to break up the organized traffic in tips, but its recognition of tipping on an unorganized basis is equivalent to the action of some European governments in paying out of their treasuries tribute to the Barbary pirates for the privilege of sailing the high seas. Thomas Jefferson's democracy rebelled at this and he freed the whole world from the outrageous custom.
Massachusetts has a law to prohibit the corrupt influencing of agents, employees or servants, but it is aimed specially at the practice of "splitting commissions" and does not operate to restrain tipping in the State. A salesman sometimes will offer to give a buyer a bonus or part of his commission if an order is placed, and this practice is causing the business world considerable thought, as employers realize that a buyer who will accept favors from salesmen will not exercise unbiased judgment. It is the itching palm a plane above tipping owing to the larger amount involved, and is akin to the graft of public officials. The law follows: "Whoever corruptly gives, offers or promises to an agent, employee or servant any gift or gratuity whatever, with intent to influence his action in relation to his principal's, employer's or master's business; or an agent, employee or servant who corruptly requests or accepts a gift or gratuity or a promise to make a gift or to do an act beneficial to himself under an agreement or with an understanding that he shall act in any particular manner in relation to his principal's, employer's or master's business; or an agent, employee or servant, who, being authorized to procure materials, supplies or other articles either by purchase or contract for his principal, employer or master, or to employ service or labor for his principal, employer or master receives, directly or indirectly, for himself or for another, a commission, discount or bonus from the person who makes such sale or contract, or furnishes such materials, supplies or other articles, or from a person who renders such service or labor; and any person who gives or offers such an agent, employee or servant such commission, discount or bonus, shall be punished by a fine of not less than ten dollars nor more than five hundred dollars, or by such fine and by imprisonment for not more than one year." Although the Arkansas and Mississippi laws against tipping are not mentioned, a comprehensive idea of the extent and nature of the opposition to the custom in the United States is presented in the review of the bills introduced in or enacted by the Legislatures of Iowa, Wisconsin, South Carolina, Nebraska, Tennessee, Illinois, and Massachusetts. All the other States have no laws against tipping. Considering the fact that no organization has been formed to agitate for this reform, these spontaneous State efforts are significant. _ |
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