I am of the opinion that in so far as the act under discussion prohibits any contract between the employer and the employee that all or any tips and gratuities received by the employee while in the employment of the employer shall belong and be paid to the employer, or that prohibits any demand or receipt by the employer from the employee of the tips and gratuities to which he is entitled under any such contract, it is in violation of provisions of the federal and state constitutions. In my opinion the only conceivable ground upon which this portion of the act might be upheld is that it was essential to the protection of the public against fraud. As is shown by the prevailing opinion, the only possible fraud on the public is the keeping of them in ignorance of the ultimate disposition of tips and gratuities conferred by them. That this evil might be sufficiently overcome by reasonable regulation short of absolutely prohibiting a contract between the employee and employer is also sufficiently shown in the opinion. This being so, the authorities amply sustain the conclusion that there can *Page 601 be no such prohibiting of contract. (See, also, In re Kelso,147 Cal. 609, [109 Am. St. Rep. 178, 2 L. R. A. (N. S.) 796,82 P. 241].)
I therefore concur in the judgment discharging the petitioner.