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government applying the amount to the bequest contained in the foregoing charitable, beneficial and public works clause of the will was void. The at and in the city of Dacca in Bengal.” court held that the provision was The bill filed by the testator's widow a good and valid bequest, which the against the executor prayed, among executor should carry out in full. other things, for a declaration that

R. E. La G.

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(112 Kan. 834, 212 Pac. 871.) Barbers -- who subject to regulation.

The proprietor of a "hairdressing and beauty parlor," the important features of whose business include cutting hair, massaging, clipping hair with barber clippers, singeing the hair, giving tonics, shampooing and manicuring, but not shaving the face, is not a "barber" within the meaning of that word as used in a statute subjecting the followers of that occupation to examination and regulation.

[See note on this question beginning on page 433.] Headnote by MASON, J.

APPEAL by plaintiff from a judgment of the District Court for Sedgwick County (Sargent, J.) in favor of defendants in an action brought to prevent them from requiring plaintiff to comply with the regulations imposed upon barbers. Reversed.

The facts are stated in the opinion of the court.

Messrs. William Keith and Charles Barbers to Practise Their Trade or A. Walsh, Jr., for appellant.

Calling and Providing Punishment Messrs. Hasty & Hasty and James for a Violation Thereof." Gen. A. Conly for appellees.

Stat. 1915, chap. 108, art. 33. Its Mason, J., delivered the opinion first sentence reads: "It shall be of the court:

unlawful for any person to follow This action was brought by Mary the occupation of a barber in this E. Keith, who operates in Wichita state unless he shall have first oba place which she styles "Ladies' tained a certificate of registration, Hairdressing and Beauty Parlors," as provided in this act." Gen. Stat. against the state barber board and 1915, $ 10,326. others, to prevent their requiring It contains no definition of the her to comply with the regulations word “barber.” It requires an apimposed upon barbers. She was re- plicant for such certificate to show, fused relief, and appeals.

among other things, that he is free The question involved is whether from contagious or infectious disthe business conducted by the plain- ease, and that he has the skill to tiff makes her a "barber' within the properly perform all the duties of a meaning of the term in the statute barber, "including his ability in regulating the practice of that call- shaving, hair cutting, preparation ing, the defendants holding the af- of tools, and all duties and services firmative. The act is entitled as one incident thereto." Gen. Stat. 1915, "Creating a Board of Examiners to $ 10,333. Examine and License Barbers; The trial court found upon suffi

Providing for a License for cient evidence that the plaintiff in

(112 Kan. 834, 212 Pac. 871.) her beauty-parlor shop had been do- that specific reference would have ing all of these different kinds of been made to them. They were not work which barbers in general do: unknown at the date of its enactCutting hair, massaging the face,' ment—in 1913. Merely by way of clipping hair with barber clippers, illustration, it may be mentioned

hair, giving tonics, that the Topeka city directory of shampooing, manicuring; that these 1912 included seven “hairdressers,” activities were not merely inciden- one of whom was advertised as tal, but were important features of a “beauty specialist,” furnishing the business, co-ordinating with oth- “manicuring, massage, shampooing, er parts of it. The defendants ar- and scalp treatment," and another gue that in order for a person to be as engaged in “up-to-date and classy engaged in the occupation of a bar- manicuring and hairdressing." A ber it is not necessary that he should similar statute was passed in 1903 perform all its usual functions; that (chap. 70) and repealed in 1905 if he confined his activities to shav- (chap. 70). No showing is made ing, or even to cutting hair, he that prior to the present attempt might nevertheless be practising any effort has been made to enforce that calling; that all the reasons for against such places as the plaintiff's regulating any barber shop apply either of these statutes, or that of with equal force to such an estab- · 1909, giving the board of health lishment as that conducted by the power to regulate barber shops, plaintiff; and that a principal pur- barber schools, public bathhouses, pose of the statute is to prevent the and public bathrooms, “in the inspread of communicable disease, terest of the public health, and to precautions to which end are as prevent the spread of contagious necessary in the one case as in the and infectious diseases." Gen. Stat. other.

1915, $$ 10,195, 10,196. The long The argument is plausible, but we omission of those charged with the think it is overcome by these consid- administration of these laws to unerations: Violation of the statute is dertake their enforcement against punishable by both fine and impris- persons in the plaintiff's situation onment, and its provisions must be amounts to such an operative conconstrued with some degree of struction as the courts generally restrictness on that account. There spect. If persons who do work simmay be difficulty in stating the pre- ilar to that of barbers, but do not cise difference between the two, but undertake to shave customers, are to Barbers-who

we do not think the be brought within the discipline of a subject to regu- use of the term regulating board, it should be by "barber shop" fair

virtue of new legislation rather than ly indicates or suggests the kind of by an extension of the scope of the place kept by the plaintiff. Such existing law by interpretation places are not ordinarily spoken of

The judgment is reversed, and the as barber shops, nor those working

cause is remanded, with directions therein as barbers. If the legislature had intended to include such es

to render judgment for the plaintablishments within the operation

tiff. of the law, the strong probability is Hopkins, J., not sitting.


ANNOTATION. Places and persons within purview of statute or ordinance regulating barbers.

In the reported case (KEITH V. shop within the meaning of the KanSTATE BARBER BD. ante, 432) it is held sas statute (Gen. Stat. 1915, § 10,325), that the proprietor of a ladies' hair providing that any person following dressing and beauty parlor is not a the occupation of barber within the barber, and the place is not a barber state must obtain a certificate of registration by satisfying the board about six years, cutting the hair and of examiners that the applicant is free shaving the beards of those who patfrom contagious or infectious disease ronized his shop, and on the particular and possesses the necessary skill date in question he had cut the hair to perform properly all the duties of of S. D. Williams, as well as shaved the trade. The record showed that him, for which he charged the price the appellant conducted an establish- of 35 cents for the hair cutting, and ment known as a ladies' hairdressing 15 cents for shaving him. In other and beauty parlor, but incidentally to words, the agreed statement of facts her activities performed all the dif- shows that he was a barber following ferent kinds of work which barbers that business.” in general do. When occasion de- Barlin v. Knox County (1916) 136 manded she attended to hair cutting, Tenn. 238, 2 A.L.R. 112, 188 S. W. face massaging, singeing the hair,

31 A.L.R.-28.

795, a

case not strictly within the applying tonics, shampooing, and scope of this annotation, construed the manicuring. All these activities were proviso of the Tennessee Revenue Act regularly carried on, without obtain- of 1915 (Pub. Acts 1915, chap. 101, ing the certificate provided for in the § 263), imposing a license tax on shoeheretofore mentioned statute. The shining parlors, "provided this shall court reasoned that the terms "bar- not apply to barber shops.” It was held ber" and "barber shop" have well-es- that a barber shop was not subject to tablished meanings which do not in- the license tax unless shoe shining beclude the kind of business kept by came the main business of the estabthe appellant, and the fact that work lishment, and the place was in fact similar to that performed by barbers a shoe-shining parlor. The court was attended to does not bring the said: “We cannot agree that conductcase within the statute.

ing a barber shop, where is also done It was held in Faulkner v. Solazzi shoe shining, but only as a mere in(1907) 79 Conn. 541, 9 L.R.A.(N.S.) cident of the business, is a shoe601, 65 Atl. 947, 9 Ann. Cas. 67, that shining parlor within the meaning of the Connecticut statute (Pub. Acts the legislation. Of course, wherever 1903, p. 91, chap. 130) regulating bar

shoe shining is conducted on such a bers did not require a license to con- scale in a barber shop that it becomes duct a barber shop, but only required the main feature or object of the persons actually practising the trade business there conducted, such busito be licensed. “No license is re

ness would cease to be a barber shop, quired to conduct a barber shop. and become a shoe-shining parlor Anyone can do that. The only license within the meaning of the statute; required is of the individual who

and, vice versa, a shoe-shining parlor, practises his trade therein.. The law

by the same process, might be conthus seeks to secure competent and

verted into a barber shop within the proper workmen in the interest of

meaning of the act.. . Under the public safety and health. The pro

view we take of the legislation the prietor may be unlicensed."

proviso was mere surplusage. If it had The appellant in Jackson v. State

been omitted the privilege tax de(1908) 55 Tex. Crim. Rep. 557, 117 S. W. 818, was convicted of violating

clared against shoe-shining parlors the Texas Barber Act (Acts of 13th

could not have been exacted from one Legislature, p. 275), which regulated conducting a barber shop, unless, of the registering and licensing of per- course, the shining of shoes was consons to engage in such practice. The

ducted in the barber shop to such an facts which brought the appellant extent as to become the main busiwithin the statute were stated by the ness there conducted; in which event court in the following language: it would, of course, be a shoe-shining “The facts show that appellant was parlor within the meaning of the act, following and had been pursuing his whatever it might be called by the trade or occupation as a barber for proprietor."

R. E. La G.

(289 Fed. 732.)

RE HARRY MIRKUS et al., etc., Trading as Mirkus Brothers, Bankrupts.


United States Circuit Court of Appeals, Second Circuit - April 9, 1923.

(289 Fed. 732.)

Bankruptcy - effect of nonpayment of composition notes.

1. Failure to pay promissory notes which are a part of a composition ir. bankruptcy does not revive the debt discharged by confirmance of the composition under § 14c of the Bankruptcy Act of 1898, which declares that confirmation of a composition shall discharge the bankrupt from his debts other than those agreed to be paid by the terms of the composition.

[See note on this question beginning on page 439.] Courts jurisdiction effect of dis- except the fraction which the bankcharge in bankruptcy.

rupt agrees to pay. 2. The effect of a discharge in bank

[See 3 R. C. L. 308.] ruptcy is matter for the considera- - effect of confirming composition. tion of any court to which it may be 4. Upon signing an order of compresented, as a defense or otherwise. position in bankruptcy the court loses

jurisdiction except to set the composiBankruptcy – effect of composition.

tion aside within the time and for the 3. The confirmation of a composition

reasons permitted by statute. in bankruptcy operates as a discharge [See 3 R. C. L. 307, 308; 1 R. C. L. from all debts treated in the order, Supp. 806.]

PETITION to revise an order of the District Court of the United States for the Southern District of New York (Mack, J.) reversing an order of the referee in bankruptcy, denying an application for the reduction of petitioner's claim to the amount of certain notes. Affirmed.

Statement by Hough, Circuit petition at bar filed a claim for Judge:

Mirkus's original indebtedness to it Against the bankrupts named as the same existed on the day of above (hereinafter called “Mir- the first bankruptcy, less only 10 per kus") an involuntary petition was

cent cash and the proceeds of the filed on November 12, 1920. In that single composition note actuaily proceeding, and before adjudication, paid. The indebtedness of Mirkus Mirkus made an offer of composi, arising between the two petitions in tion which was duly accepted and bankruptcy is very large, and owing duly confirmed, and never vacated or set aside. Said composition was

to numerous creditors.

The court below rejected the pefor 10 per cent cash and 20 per cent

titioner's claim for its original inin indorsed notes. This consideration was duly deposited in court and

debtedness, and restricted the same subsequently distributed. The 20

to the amount of the unpaid comper cent above mentioned was repre

position notes issued in the first sented by four promissory notes, of bankruptcy. To the order enforcing which the first was duly paid. The this decision, the present petition to other three, representing apparent- revise was filed. ly 15 per cent of each creditor's

Argued before Hough, Manton, and original claim, have never been paid.

Mayer, Circuit Judges. On April 27, 1921, the present in

Mr. Samuel J. Rawak, for petitioner: voluntary petition was filed against

The failure to carry out the comMirkus and due adjudication has position agreement, the basis of the followed. In this proceeding the order of confirmation, is to destroy the


p. 1264.

efficacy of the discharge resulting The order confirming the composifrom such confirmation.

tion in the first bankruptcy proceedRe Wayne Realty Co. 275 Fed. 955; ing discharged the bankrupts from the Re Prudential Outfitting Co. 250 Fed. claim which the petitioner then had 504; Re Kinnane Co. 221 Fed. 764; against them. Re Hurst, 1 Flipp. 462, Fed. Cas. No. Re Hollins, 143 C. C. A. 469, 229 6,925; Re Eisenberg, 148 Fed. 325; Fed. 349; Re Hollins, 151 C. C. A. 637, Zavelo v. Reeves, 227 U. S. 629, 57 238 Fed. 788; Guaranty Trust Co. v. L. ed. 676, 33 Sup. Ct. Rep. 365, Ann. McCabe, 163 C. C. A. 31, 250 Fed. Ces. 19140, 664; Newell Van 702; Re Siegel, 167 C. C. A. 442, 256 Praagh, L. R. 9 C. P. 98, 43 L. J. C. P. Fed. 226; Re Amy, 263 Fed. 11; N. S. 94, 29 L. T. N. S. 891, 22 Week. Jacobs v. Fensterstock, 202 App. Div. Rep. 377; Citizens' Loan Asso, v. Bos- 795, 194 N. Y. Supp. 947, affirming ton & M. R. Co. 196 Mass. 528, 14 118 Misc. 266, 193 N. Y. Supp. L.R.A. (N.S.) 1025, 124 Am. St. Rep. 827; Beck v. Witteman Bros. 185 App. 584, 82 N. E. 696, 13 Ann. Cas. 365, 19 Div. 644, 173 N. Y. Supp. 488; CumAm. Bankr. Rep. 650; Re Carton, 148 berland Glass Mfg. Co. v. DeWitt, 237 Fed. 63; Vogt v. Fasola, 41 App. Div. U. S. 447, 59 L. ed. 1042, 35 Sup. 467, 58 N. Y. Supp. 982; Clarke v. Ct. Rep. 636; Re Maytag-Mason Motor White, 12 Pet. 178, 9 L. ed. 1046; Re Co. 223 Fed. 684; Collier, Bankr. 10th Negley, 20 Fed. 499; Ransom v. Geer, ed. p. 365; Re McNab & H. Mfg. Co. 12 Fed. 607; Ex parte Gilbey, L. R. 8 Fed. Cas. No. 8,906; Re Langdon, 2 Ch. Div. 248, 47 L. J. Bankr. N. S. 49, Low. Dec. 387, Fed. Cas. No. 8,058, 13 38 L. T. N. S. 728, 26 Week. Rep. 768 Nat. Bankr. Rep. 60; Loveland, Bankr. -C. A.; Goldney v. Lording, L. R. 8 Q. B. 182, 42 L. J. Q. B. N. S. 103, 21

Hough, Circuit Judge, delivered Week. Rep. 543; Beck v. Witteman Bros. 185 App. Div. 646, 173 N. Y.

the opinion of the court: Supp. 488.

The bankruptcy court alone has Section 14c of the Bankrupt Act

the power to grant a discharge, but should be construed to accomplish the

the effect of a dis

Courts-jurisobvious intent of the parties when charge is matter for entering into the composition agree- the consideration of of discharge in

bankruptcy. ment, and not to discharge the bank- any court to which rupt from performance and at the it may be presented as a defense or same time leave the creditor bound

otherwise. Re Havens (C. C. A.) by the agreement, the basis of the de

272 Fed. 975. The case at bar quescree. Re Roth, 31 L.R.A.(N.S.) 270, 104 C.

tions the effect of a composition C. A. 649, 181 Fed. 670; Re Abrams,

agreement carried through in ac173 Fed. 430; Re Wilkins, 191 Fed.

cordance with the statute. In sub94; Jacobs v. Fensterstock, 118 Misc. stance, the composition order is of266, 193 N. Y. Supp. 827, affirmed on fered as a defense, i. e., a means of opinion below in 202 App. Div. 795, 194 denying the right of the present N. Y. Supp. 947; Re Rider, 96 Fed. petitioner to file a claim consisting 808; Re Frear, 120 Fed. 980; Re Kin- of its original indebtedness. The nane Co. 221 Fed. 764; Gibson v.

fact that this defense or denial of United States, 194 U. S. 182, 48 L. ed.

right was advanced in the court be926, 24 Sup. Ct. Rep. 613; United

low-i. e., a bankruptcy court-disStates v. Hogg, 50 C. C. A. 608, 112 Fed. 912; Collins v. New Hampshire, guises the issue; the point would be 171 U. S. 30, 43 L. ed. 60, 18 Sup. Ct.

exactly the same had this petitioner Rep. 768.

sued Mirkus on its original debt and The indorsement of the notes did been met with a plea of composition. not affect the liability of the bank- Therefore, consideration begins rupts, or the result of their default.

with ascertaining the nature and Swartz v. Brown, 135 App. Div. 914, substance of a composition under 119 N. Y. Supp. 1024; Ex parte Gilbey,

the Act of 1898. Under $ 70f L. R. 8 Ch. Div. 248, 47 L, J. Bankr. N. S. 49, 38 L. T. N. S. 728, 26 Week.

(Comp. Stat. $ 9654, 1 Fed. Stat. Rep. 768—C. A.

Anno. 2d ed. p. 1219), the property Messrs. Jacob J. Lesser and Henry

of a bankrupt revests in him by opLesser, for trustee:

eration of law upon the confirmation


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