her beauty-parlor shop had been doing all of these different kinds of work which barbers in general do: Cutting hair, massaging the face, clipping hair with barber clippers, singeing the hair, giving tonics, shampooing, manicuring; that these activities were not merely incidental, but were important features of the business, co-ordinating with other parts of it. The defendants argue that in order for a person to be engaged in the occupation of a barber it is not necessary that he should perform all its usual functions; that if he confined his activities to shaving, or even to cutting hair, he might nevertheless be practising that calling; that all the reasons for regulating any barber shop apply with equal force to such an establishment as that conducted by the plaintiff; and that a principal purpose of the statute is to prevent the spread of communicable disease, precautions to which end are as necessary in the one case as in the other.

Barbers-who

The argument is plausible, but we think it is overcome by these considerations: Violation of the statute is punishable by both fine and imprisonment, and its provisions must be construed with some degree of strictness on that account. There may be difficulty in stating the precise difference between the two, but we do not think the subject to regu- use of the term "barber shop" fairly indicates or suggests the kind of place kept by the plaintiff. Such places are not ordinarily spoken of as barber shops, nor those working therein as barbers. If the legislature had intended to include such establishments within the operation of the law, the strong probability is

lation.

that specific reference would have been made to them. They were not unknown at the date of its enactment-in 1913. Merely by way of illustration, it may be mentioned that the Topeka city directory of 1912 included seven "hairdressers," one of whom was advertised as a "beauty specialist," furnishing "manicuring, massage, shampooing, and scalp treatment," and another as engaged in "up-to-date and classy manicuring and hairdressing." A Α similar statute was passed in 1903 (chap. 70) and repealed in 1905 (chap. 70). No showing is made that prior to the present attempt any effort has been made to enforce against such places as the plaintiff's either of these statutes, or that of 1909, giving the board of health power to regulate barber shops, barber schools, public bathhouses, and public bathrooms, "in the interest of the public health, and to prevent the spread of contagious and infectious diseases." Gen. Stat. 1915, §§ 10,195, 10,196. The long omission of those charged with the administration of these laws to undertake their enforcement against persons in the plaintiff's situation amounts to such an operative construction as the courts generally respect. If persons who do work similar to that of barbers, but do not undertake to shave customers, are to be brought within the discipline of a regulating board, it should be by virtue of new legislation rather than by an extension of the scope of the existing law by interpretation

The judgment is reversed, and the cause is remanded, with directions to render judgment for the plaintiff.

Hopkins, J., not sitting.

STATE BARBER BD. ante, 432) it is held that the proprietor of a ladies' hairdressing and beauty parlor is not a barber, and the place is not a barber 31 A.L.R.-28.

sas statute (Gen. Stat. 1915, § 10,325), providing that any person following · the occupation of barber within the state must obtain a certificate of

registration by satisfying the board of examiners that the applicant is free from contagious or infectious disease and possesses the necessary skill to perform properly all the duties of the trade. The record showed that the appellant conducted an establishment known as a ladies' hairdressing and beauty parlor, but incidentally to her activities performed all the different kinds of work which barbers in general do. When occasion demanded she attended to hair cutting, face massaging, singeing the hair, applying tonics, shampooing, and manicuring. All these activities were regularly carried on, without obtaining the certificate provided for in the heretofore mentioned statute. The court reasoned that the terms "barber" and "barber shop" have well-established meanings which do not include the kind of business kept by the appellant, and the fact that work similar to that performed by barbers was attended to does not bring the case within the statute.

It was held in Faulkner v. Solazzi (1907) 79 Conn. 541, 9 L.R.A. (N.S.) 601, 65 Atl. 947, 9 Ann. Cas. 67, that the Connecticut statute (Pub. Acts 1903, p. 91, chap. 130) regulating barbers did not require a license to conduct a barber shop, but only required persons actually practising the trade to be licensed. "No license is required to conduct a barber shop. Anyone can do that. The only license required is of the individual who practises his trade therein. The law thus seeks to secure competent and proper workmen in the interest of public safety and health. The proprietor may be unlicensed."

The appellant in Jackson v. State (1908) 55 Tex. Crim. Rep. 557, 117 S. W. 818, was convicted of violating the Texas Barber Act (Acts of 13th Legislature, p. 275), which regulated the registering and licensing of persons to engage in such practice. The facts which brought the appellant within the statute were stated by the court in the the following language: "The facts show that appellant was following and had been pursuing his trade or occupation as a barber for

about six years, cutting the hair and shaving the beards of those who patronized his shop, and on the particular date in question he had cut the hair of S. D. Williams, as well as shaved him, for which he charged the price of 35 cents for the hair cutting, and 15 cents for shaving him. In other words, the agreed statement of facts shows that he was a barber following that business."

Barlin v. Knox County (1916) 136 Tenn. 238, 2 A.L.R. 112, 188 S. W. 795, a case not strictly within the scope of this annotation, construed the proviso of the Tennessee Revenue Act of 1915 (Pub. Acts 1915, chap. 101, § 263), imposing a license tax on shoeshining parlors, "provided this shall not apply to barber shops." It was held that a barber shop was not subject to the license tax unless shoe shining became the main business of the establishment, and the place was in fact a shoe-shining parlor. The court said: "We cannot agree that conducting a barber shop, where is also done shoe shining, but only as a mere incident of the business, is a shoeshining parlor within the meaning of the legislation. Of course, wherever shoe shining is conducted on such a scale in a barber shop that it becomes the main feature or object of the business there conducted, such business would cease to be a barber shop, and become a shoe-shining parlor within the meaning of the statute; and, vice versa, a shoe-shining parlor, by the same process, might be converted into a barber shop within the meaning of the act. . . . Under the view we take of the legislation the proviso was mere surplusage. If it had been omitted the privilege tax declared against shoe-shining parlors could not have been exacted from one conducting a barber shop, unless, of course, the shining of shoes was conducted in the barber shop to such an extent as to become the main business there conducted; in which event it would, of course, be a shoe-shining parlor within the meaning of the act, whatever it might be called by the proprietor." R. E. La G.

April 9, 1923.

Against the bankrupts named above (hereinafter called "Mirkus") an involuntary petition was filed on November 12, 1920. In that proceeding, and before adjudication, Mirkus made an offer of composition which was duly accepted and duly confirmed, and never vacated or set aside. Said composition was for 10 per cent cash and 20 per cent in indorsed notes. This consideration was duly deposited in court and subsequently distributed. The 20 per cent above mentioned was represented by four promissory notes, of which the first was duly paid. The other three, representing apparently 15 per cent of each creditor's original claim, have never been paid. On April 27, 1921, the present involuntary petition was filed against Mirkus and due adjudication has followed. In this proceeding the

Mirkus's original indebtedness to it as the same existed on the day of the first bankruptcy, less only 10 per cent cash and the proceeds of the single composition note actually paid. The indebtedness of Mirkus arising between the two petitions in bankruptcy is very large, and owing to numerous creditors.

The court below rejected the petitioner's claim for its original indebtedness, and restricted the same to the amount of the unpaid composition notes issued in the first bankruptcy. To the order enforcing this decision, the present petition to revise was filed.

Mayer, Circuit Judges.
Argued before Hough, Manton, and

Mr. Samuel J. Rawak, for petitioner: The failure to carry out the composition agreement, the basis of the order of confirmation, is to destroy the

efficacy of the discharge resulting from such confirmation.

Re Wayne Realty Co. 275 Fed. 955; Re Prudential Outfitting Co. 250 Fed. 504; Re Kinnane Co. 221 Fed. 764; Re Hurst, 1 Flipp. 462, Fed. Cas. No. 6,925; Re Eisenberg, 148 Fed. 325; Zavelo v. Reeves, 227 U. S. 629, 57 L. ed. 676, 33 Sup. Ct. Rep. 365, Ann. Ces. 1914D, 664; Newell V. Van Praagh, L. R. 9 C. P. 98, 43 L. J. C. P. N. S. 94, 29 L. T. N. S. 891, 22 Week. Rep. 377; Citizens' Loan Asso. v. Boston & M. R. Co. 196 Mass. 528, 14 L.R.A. (N.S.) 1025, 124 Am. St. Rep. 584, 82 N. E. 696, 13 Ann. Cas. 365, 19 Am. Bankr. Rep. 650; Re Carton, 148 Fed. 63; Vogt v. Fasola, 41 App. Div. 467, 58 N. Y. Supp. 982; Clarke v. White, 12 Pet. 178, 9 L. ed. 1046; Re Negley, 20 Fed. 499; Ransom v. Geer, 12 Fed. 607; Ex parte Gilbey, L. R. 8 Ch. Div. 248, 47 L. J. Bankr. N. S. 49, 38 L. T. N. S. 728, 26 Week. Rep. 768 -C. A.; Goldney v. Lording, L. R. 8 Q. B. 182, 42 L. J. Q. B. N. S. 103, 21 Week. Rep. 543; Beck v. Witteman Bros. 185 App. Div. 646, 173 N. Y. Supp. 488.

Section 14c of the Bankrupt Act should be construed to accomplish the obvious intent of the parties when entering into the composition agreement, and not to discharge the bankrupt from performance and at the same time leave the creditor bound by the agreement, the basis of the de

cree.

Re Roth, 31 L.R.A. (N.S.) 270, 104 C. C. A. 649, 181 Fed. 670; Re Abrams, 173 Fed. 430; Re Wilkins, 191 Fed. 94; Jacobs v. Fensterstock, 118 Misc. 266, 193 N. Y. Supp. 827, affirmed on opinion below in 202 App. Div. 795, 194 N. Y. Supp. 947; Re Rider, 96 Fed. 808; Re Frear, 120 Fed. 980; Re Kinnane Co. 221 Fed. 764; Gibson V. United States, 194 U. S. 182, 48 L. ed. 926, 24 Sup. Ct. Rep. 613; United States v. Hogg, 50 C. C. A. 608, 112

Fed. 912; Collins v. New Hampshire, 171 U. S. 30, 43 L. ed. 60, 18 Sup. Ct. Rep. 768.

The indorsement of the notes did not affect the liability of the bankrupts, or the result of their default.

Swartz v. Brown, 135 App. Div. 914, 119 N. Y. Supp. 1024; Ex parte Gilbey, L. R. 8 Ch. Div. 248, 47 L. J. Bankr. N. S. 49, 38 L. T. N. S. 728, 26 Week. Rep. 768-C. A.

Messrs. Jacob J. Lesser and Henry Lesser, for trustee:

The order confirming the composition in the first bankruptcy proceeding discharged the bankrupts from the claim which the petitioner then had against them.

Re Hollins, 143 C. C. A. 469, 229 Fed. 349; Re Hollins, 151 C. C. A. 637, 238 Fed. 788; Guaranty Trust Co. v. McCabe, 163 C. C. A. 31, 250 Fed. 702; Re Siegel, 167 C. C. A. 442, 256 Fed. 226; Re Amy, 263 Fed. 11; Jacobs v. Fensterstock, 202 App. Div. 795, 194 N. Y. Supp. 947, affirming 118 Misc. 266, 193 N. Y. Supp. 827; Beck v. Witteman Bros. 185 App. Div. 644, 173 N. Y. Supp. 488; Cumberland Glass Mfg. Co. v. DeWitt, 237 U. S. 447, 59 L. ed. 1042, 35 Sup. Ct. Rep. 636; Re Maytag-Mason Motor Co. 223 Fed. 684; Collier, Bankr. 10th ed. p. 365; Re McNab & H. Mfg. Co. Fed. Cas. No. 8,906; Re Langdon, 2 Low. Dec. 387, Fed. Cas. No. 8,058, 13 Nat. Bankr. Rep. 60; Loveland, Bankr. p. 1264.

Hough, Circuit Judge, delivered the opinion of the court:

The bankruptcy court alone has the power to grant a discharge, but the effect of a discharge is matter for diction-effect the consideration of of discharge in any court to which

Courts-juris

bankruptcy.

it may be presented as a defense or otherwise. Re Havens (C. C. A.) 272 Fed. 975. The case at bar questions the effect of a composition agreement carried through in accordance with the statute. In substance, the composition order is offered as a defense, i. e., a means of denying the right of the present petitioner to file a claim consisting of its original indebtedness. The fact that this defense or denial of right was advanced in the court below-i. e., a bankruptcy court-disguises the issue; the point would be exactly the same had this petitioner sued Mirkus on its original debt and been met with a plea of composition.

Therefore, consideration begins with ascertaining the nature and substance of a composition under the Act of 1898. Under 70f (Comp. Stat. § 9654, 1 Fed. Stat. Anno. 2d ed. p. 1219), the property of a bankrupt revests in him by operation of law upon the confirmation