Dunahoo v. Huber

• Decision Date: 17 March 1919
• Docket Number: 31536
• Parties: T. J. DUNAHOO, Appellee, v. SIM T. HUBER, Appellant
• Court: Iowa Supreme Court

171 N.W. 123

185 Iowa 753

T. J. DUNAHOO, Appellee, v. SIM T. HUBER, Appellant

No. 31536

Supreme Court of Iowa, Des Moines

March 17, 1919

Appeal from Woodbury District Court.--GEORGE JEPSON, Judge.

A warrant was duly issued and placed in the hands of the defendant as constable, who placed Dunahoo under arrest. Thereupon, he sued out a writ of habeas corpus, and on hearing, was discharged. Defendant appeals.

Affirmed.

H. M Havner, Attorney General, F. C. Davidson, Assistant Attorney General, and C. G. Watkins, for appellant.

L. H Salinger, for appellee.

LADD C. J. GAYNOR, PRESTON, and STEVENS, JJ., concur. EVANS, J., WEAVER, J., (dissenting).

OPINION

LADD, C. J.

The plaintiff, who was arrested for receiving a tip, while engaged as an employee in a barber shop, was discharged on hearing in habeas corpus proceedings. The prosecution was for violation of Section 5028-u of the Supplemental Supplement, 1915.

"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."

The constitutionality of this statute is challenged on several grounds, among them that it invades rights to property and its protection, and is inimical to Section 6 of Article 1 of the Constitution of Iowa, which declares that "all laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen or class of citizens, privileges or immunities, which upon the same terms shall not equally belong to all citizens," and that portion of Section 1 of the Fourteenth Amendment to the Constitution of the United States which prohibits a state from denying to "any person within its jurisdiction the equal protection of its laws." Only these need be considered.

It will be observed, from an analysis of the statute, "that only the employee of a hotel, restaurant, or barber shop" is prohibited from accepting a tip or gratuity. The proprietor of the hotel, restaurant, or barber shop is not interfered with, or prohibited from accepting such gift. While an employee of a person engaged in the transportation of passengers may not receive any gratuity or gift, such person may, under like circumstances, accept favors of this kind. An employee is defined by Webster as "one employed by another; a clerk or workman in the service of an employer, usually distinguished from an official or officer or one employed in a position of some authority;" and a like definition is found in the Century Dictionary. See Johnston v. Barrills, 27 Ore. 251 (41 P. 656). Under this act, the proprietor of a hotel, restaurant, or barber shop, even though engaged in the same employment, would be perfectly free to accept tips or gratuities or anything of value, while the employee, working at his side and engaged in the same occupation, might be prosecuted for having committed a crime, should he do the same thing. That the proprietor would not be likely to be made the recipient of such a so-called courtesy does not answer the criticism. The present case illustrates the vice of this statute. There were two chairs in the barber shop; the employer, one Murphy, worked at one of these, and defendant at the other. Murphy undertook to pay the defendant $ 15 per week and 60 per cent of what he received for his work above said sum, and defendant was to have, according to the custom of the trade, such tips and gratuities as might be handed him. A customer gave him 25 cents in excess of the charges, and he was prosecuted. Had the same amount been handed to Murphy, his employer, no offense could have been charged. Manifestly, there is no reason for such discrimination. For the purpose of efficient and beneficial legislation, it is often necessary to divide the subjects upon which it operates into classes. Indeed, the greater part of all legislation is of this character, but the authorities agree that the distinction in dividing must not be arbitrary, and must be based on differences which are apparent and reasonable. The classification should be based upon some apparent natural reason,--some reason suggested by necessity,--such a difference in situation and circumstances of the subjects placed in the one class or the other as to suggest the necessity or propriety of discrimination with respect to them.

Classifying the difference between the situations of the persons of the respective classes as employers and employees is not alone sufficient. Reference must also be had to the subject-matter of the legislation affecting the respective classes created. There can be no controversy but that employers and employees may be divided into separate classes for the purpose of legislation on many subjects, but where the evil to be remedied relates to members of one class quite as well as to another, and is quite as obnoxious to good morals, such a classification would be unwarranted. The section of the Constitution quoted exacts that the general assembly shall not grant to any class of citizens, privileges and immunities which, upon the same terms, shall not equally belong to all citizens; and this necessarily includes any class into which the citizens may be divided. That the difference between employer and employees is such as to warrant their separate classification for some purposes, would not justify this legislation if, in fact, privileges and immunities are accorded to the one class which, on the same terms, do not equally belong to the other class. We are unable to discover any reasonable ground for saying that employers as a class may accept tips or gratuities, and employees may not, especially in those vocations where they are engaged in the same identical work.

Tipping may be an evil, but this does not justify discrimination between classes in order to put it down. In so far as the public is concerned, the evil of tipping the employer is quite as obnoxious to good morals as though it were done to the employee. Surely, here there is no ground for discrimination. Nor can tipping the employee be said...