(dissenting) — It may seem trifling to object to tipping at public expense, however, it violates the state constitution and the precedent it sets will cost the taxpayers millions of dollars.
For instance, there has been appropriated for the 1979-81 budget a sum of some $56.6 million for travel and per diem expense for the State. The amount provided by other subdivisions of government for the public expenses of their employees is equally impressive. If tipping is permitted in the instant case, I am sure that all government entities will follow this precedent.
A $5 lunch or a $10 dinner is commonplace. The public employee under present law gets a $5 lunch or a $10 dinner *723and he is asked to pay the tip out of his funds which amounts to 10 or 15 percent of the cost of the meal. It seems to me that it is a good bargain to obtain a $10 meal for the sum of $1.50, which would be the amount the individual paid as a tip. No great sacrifice at today's prices. But if the tips of public employees are to be paid by the public entities, it will amount to millions of dollars.
Article 8, section 7, of the Washington Constitution provides:
§ 7 Credit Not To Be Loaned. No county, city, town or other municipal corporation shall hereafter give any money, or property, or loan its money, or credit to or in aid of any individual, association, company or corporation, except for the necessary support of the poor and infirm, or become directly or indirectly the owner of any stock in or bonds of any association, company or corporation.
The general rules followed in the interpretation of this case are as follows: All constitutional adjudication begins with the understanding that the constitution is an expression of the will of the people. State ex rel. Albright v. Spokane, 64 Wn.2d 767, 394 P.2d 231 (1964). Thus, the court is limited in its role in interpreting the constitution. First, the court has no power to construe or interpret a provision that is clear, plain and unambiguous in its terms. Anderson v. Chapman, 86 Wn.2d 189, 543 P.2d 229 (1975). See State ex rel. O'Connell v. Port of Seattle, 65 Wn.2d 801, 399 P.2d 623 (1965). Second, the court cannot create exceptions where there are none, no matter how expedient or desirable, as the wisdom or folly of constitutional provisions is not the subject of judicial review. Anderson, at 196; O'Connell, at 806. However, where the meaning or scope of a constitutional provision is ambiguous and unclear, the court has a duty to construe that provision, State ex rel. O'Connell v. Slavin, 75 Wn.2d 554, 452 P.2d 943 (1969), since no other agency of government has authority to definitively interpret the constitution. State Highway Comm'n v. Pacific N.W. Bell Tel. Co., 59 Wn.2d 216, 367 *724P.2d 605 (1961). The increased level of judicial scrutiny has been for the protection of public funds which may be potentially wasted. The court has acted as a watchdog to ensure that public funds will not be given away. Words used in a constitution must be understood in their usual and ordinary sense. Gruen v. Tax Comm'n, 35 Wn.2d 1, 211 P.2d 651 (1949).
The court will not deem a transaction valid merely because it serves a laudable purpose.
Ever since statehood the executive and legislative departments of government have construed tipping as prohibited by Const, art. 8, § 7, and have interpreted the words "[n]o county, city, town or other municipal corporation shall . . . give any money . . . to . . . any individual" in their usual and ordinary sense.
The failure to tip will not subject one to any legal detriment. Actually, the act of tipping is a gratuity for goods or service. Black's Law Dictionary 830 (1968) defines gratuity as follows:
Gratuity. Something acquired without bargain or inducement. State ex rel. Stafford v. Fox-Great Falls Theatre Corporation, 114 Mont. 52, 132 P.2d 689, 697. Something given freely or without recompense; a gift; something voluntarily given in return for a favor or especially a service, hence, a bounty; a tip; a bribe. McCook v. Long, 193 Ga. 299,18 S.E.2d 488, 490;
The majority hangs its hat on the theory that in a tipping situation there is no gift because there is no "intent" to make a gift. This theory is based on a misunderstanding of the element of intent in the law of gifts. True, the courts hold that if there is no intent to make a gift, there is no valid and effective gift. See the cases cited in 38 Am. Jur. 2d Gifts § 17 (1968). As the discussion there makes clear, if there is no intent to make a gift, the alleged donor does not part with his right to the property.
I know of no case in which a gratuitous transfer was upheld by a court in spite of its finding that there was no intent to make a gift.
*725The cases cited do not so hold. The statement that an intent to make a gift is required was superfluous in Oman v. Yates, 70 Wn.2d 181, 422 P.2d 489 (1967), the court having found that there was legal consideration for the alleged gift.
State ex rel. Madden v. PUD 1, 83 Wn.2d 219, 517 P.2d 585 (1973), was not concerned with the law of gifts, but with the law of waiver. I have found no quarrel with its holding that without the intent to waive, there is no waiver. The same principle applied in the law of gifts declares that without the intent to make a gift, there is no gift — that is, no transfer of ownership. If the majority wishes to apply the principle here, it must conclude that all tips are void and the tippers are entitled to recoup their money.
I agree with the majority that nice customers are expected to tip the waiter or waitress. But they are under no legal obligation to do so. There is no consideration which imposes on them a legal obligation to pay extra for these services. Consequently, where public funds are used for these purposes, they constitute gratuities — precisely what their name describes.
If the people of this state wish to finance these gratuities with public funds, they should amend their constitution to so provide. It is not the proper role of the court to do so.
Stafford, J., concurs with Rosellini, J.