(dissenting). I am unable to concur in the majority opinion.
I. The general ground of the holding therein is that the statute in question offends against the Constitution, in that its classification makes unreasonable discrimination. The specific point made is that the prohibition of the statute applies to the employee only, and not to the employer. In my judgment, the argument is unsound. The tipping evil, if such, is, in its very nature, a wrong by the employee against the employer on the one hand, and against the patron on the other. As. against the employer, it tends to procure for the patron additional consideration at the expense ,of the employer. On the question of classification, *759we have frequently held that no more definite rule .can be laid down than that classification must be natural and reasonable, and not arbitrary or capricious. Our holdings in previous cases on this question are collated in Hubbell v. Higgins, 148 Iowa 36. See, also, Hunter v. Colfax Cons. Coal Co., 175 Iowa 245, and State v. Fairmont Creamery Co., 153 Iowa 702, 703. On this question, there is no variation in our previous utterances.
Whether there was existent a tipping evil, which was injurious to public morals, and whether it was of such magnitude as to justify legislation thereon, was a question for legislative cognizance. It was competent for the legislative body to believe, also, that there was no tipping evil existent, except such as involved an employee. The rule of uniformity requires that the legislation “must extend to and embrace all persons who are or may be under like circumstances.” This requirement is met in the statute under consideration. The same person may be an employer in one relation and an employee in another. Indeed, it is broadly true that every person is both an employer and an employee in his various relations. The statute forbids every person, while an employee of another, to solicit tips from the patron of his employer. Surely, this presents a natural and reasonable classification. To say that the statute may not forbid the employee to thus wrong his employer unless the employer is included within the same prohibition, impresses me as quite illogical.
II. The majority opinion lays some stress upon the particular facts involved as between the employer and the employee in this particular case. It is made to appear that the plaintiff’s contract with his employer was that he was to receive $15 per week and 60 per cent of what he received for his work above said sum, and that, “according to the custom of the trade,” he was to receive such tips and gratuities as might be given him. Assuming that such a.con*760tract could be pleaded by the employee as a defense to the prosecution, it furnishes no reason whatever for striking down the legislation as unconstitutional. If the sum received by the employee was so received pursuant to contract with his employer, and as a part of his compensation, then the most that could be said is that,'as between him and his employer, he did not receive it as a gratuity. How far this fact could avail as a defense, either in whole or in part, I do not stop to consider. Nor do I stop to consider whether an implied contract can be predicated upon a “custom of the trade,” when such custom is itself illegal, or contrary to public policy. The plaintiff herein made no defense in the prosecution against him. Hie simply sued out a writ of habeas corpus, and claimed his right to a discharge on the ground of the unconstitutionality of the statute. And it was upon such ground that he was discharged. It will not do, therefore, to use the weakness of the prosecution in its facts in the original case as a reason for holding the statute itself unconstitutional.
While the subject-matter of this legislation appears to some people as trivial, and perhaps to no one as profound or pressing, it is none the less important that this fact shall not become the real stimulus to interference with the just prerogatives of the legislature in the exercise of the police power. Conceding the lack of overweening importance of the ( legislation itself, I am convinced that it is not an offense against the Constitution.
Weaver, J., joins in this dissent.