was or was not such as to be within the requirement of the law; but in the present case the parties waived a jury, and submitted the facts and all legitimate inferences to be drawn therefrom to the trial court for decision. That court found that the periods of release under the circumstances did not break the consecutive character of the hours of service, and entered judgment accordingly. We are of the opinion that the periods of release were periods of waiting which gave no proper opportunity for rest. The service was what is termed a "turn-around" service. If the train crew can be given an absolute dismissal for the time which elapses at any particular terminal before the return trip is made, with only the opportunity for rest which is shown by the evidence in this case, and such time is held to break the consecutive hours of service, then the purpose of the law will be largely defeated, and the employés permitted to remain on duty for a longer period than is lawful. We are therefore of the opinion that the judgment should be affirmed; and it is so ordered. SANBORN, Circuit Judge (dissenting). The statute forbids any common carrier to permit an employé to be or remain on duty "for a longer period than 16 consecutive hours" and provides that when he has been on duty continuously for 16 hours he shall not be permitted to go on duty again until he has had “at least 10 consecutive hours off duty," and when he has been on duty "16 hours in the aggregate" he shall not be permitted to continue or go on duty without having at least 8 consecutive hours off duty. The italics are mine, and are used to challenge attention to the fact that it is a continuous service, without break or intermission, for a long period of consecutive hours, against which the portion of the law here invoked is especially leveled, and to the fact that the term "consecutive hours" is used three times in the section, once to describe the term of continuous service permitted, 16 consecutive hours, and twice to describe terms off duty, at least "10 consecutive hours" in one case, and "at least 8 consecutive hours" in the other. The record in this case discloses the fact that each of the employés whose service is the occasion of this action was absolutely released from duty by the employer for a definite period of at least 2 consecutive hours during a term of service which, if this intermission is counted as a part of it, did not amount to quite 18 hours, and that each employé was made fully aware of the fact of his freedom from service before this intermission therein commenced. Moreover, these releases were at terminals of the trips of the employés, or at terminals of the runs of their trains where the employés could obtain the accommodations of railroad stations, restaurants, and houses, and could be and were relieved of the mental tension as well as the manual labor of their service, and could be and were free from all care of their engines, or anything connected with the property of their employer. The law does not require the employer to compel its employés to sleep, or to rest, or to play, or to work during the intermission when they are off duty. It requires simply that they shall be relieved from continuous service 245 F.-5 during consecutive hours. A service of 8 hours, an intermission of 2 hours in which the employé is relieved of all duty and is free from service, followed immediately by a service of 8 consecutive hours, cannot be a service of 16 consecutive hours. If it is, then under the following provision of the statute an employé who, after serving for 16 consecutive hours, has 5 hours off duty, then 2 hours on duty, followed immediately by 5 hours off duty, has at least 10 consecutive hours off duty, and one who, after serving 16 hours in the aggregate in 24 hours, has 4 hours off duty, then 2 hours on duty, immediately followed by 4 hours off duty, has at least 8 consecutive hours off duty. This does not seem to me to be a permissible construc-· tion of the statute. The words "consecutive" and "continuously" in this statute seem to me to be not only significant, but controlling. It is common knowledge that continuous service for 16 consecutive hours exhausts, wearies, and weakens men, and tends to render them inattentive to duty, or incapable of discharging their duties, far more than an aggregate service of 16 hours in two periods of 5 hours and 11 hours each, with an intermission between them of 2 hours off duty-2 hours of absolute relief from the strain, care, tension, and labor of their duties. And it was against this exhaustion of continuous service for more than 16 consecutive hours that this statute was leveled. This is made plain by the express provision in the section under consideration that 10 consecutive hours off duty are required where the employé has been on duty for 16 consecutive hours, while only 8 consecutive hours off duty are required when he has been on duty 16 hours in the aggregate, but not 16 consecutive hours, in any 24-hour period. Judge Pollock in United States v. Atchison, Topeka & Santa Fé Ry. Co. (D. C.) 232 Fed. 196, 197, well remarked: "Having in mind the purpose of Congress in the enactment of the law, that purpose is better subserved by permitting an operator to work 9 hours out of 10, with one hour absolutely his own, except in cases of emergency, that he might take his meals, relax, and have recreation, than would be the case where he is permitted to work 9 consecutive hours." * * * And in United States v. Atchison, Topeka & Santa Fé Ry. Co., 220 U. S. 37, 44, 31 Sup. Ct. 362, 55 L. Ed. 361, where a telegraph operator was employed from half past 6 o'clock in the morning until 12, and again from 3 p. m. to half past 6, or 9 hours in all, with an intermission of 3 hours, the Supreme Court declared that: "A man employed for 6 hours and then, after an interval, for 3, in the same 24 hours is not employed for a longer period than 9 consecutive hours." Because each of the employés whose service was the occasion of this action was fully released from duty, and from all care, tension, and labor for his employer, and knew that fact before the commencement of the intermission, for a definite period of more than 2 consecutive hours during the time, which was less than 18 hours, that it is claimed that he was on duty, because the company was not required under the law to make him sleep or rest or recreate, nor was the company required to do more than to relieve him from duty, so that he could have an opportunity to rest his mind and his body, and relax from the strain and tension of continuous thought and action for his employer, because the main purpose of the provision of this law under which this action is brought was not to forbid, but to permit, service for 16 hours in the aggregate within 24 hours, where, as in this case, there is an intermission of a substantial length of time, such as 2 hours between the hours of actual service constituting that aggregate, because that provision of the law is leveled at continuous service for more than 16 consecutive hours, and its object is to relieve the weariness and exhaustion resulting from continuous mental strain and physical labor without intermission for relaxation, because employés on duty 6 hours, then off duty 2 hours, and then on duty 10 hours, are not on duty 16 consecutive hours, and because while the employés in this case were on duty, if the intermission be counted, a little more than 16 hours in the aggregate, I am unable to bring my mind to assent to the view that these men, who rendered less than 16 hours of actual discharge of duty, broken in each. case by an interval or intermission of more than 2 consecutive hours, during which they were free from all duty, were on duty more than 16 consecutive hours, I am unable to resist the conclusion that the company was not liable for a violation of this law. QUICKSILVER MINING CO. v. ANDERSON. (Circuit Court of Appeals, Ninth Circuit. September 4, 1917.) No. 2941. 1. CORPORATIONS 432(12)-OFFICERS-SCOPE OF EMPLOYMENT. In an action against a mining company to recover for services rendered in connection with the organization of a corporation for building of an electric railroad leading from the mine to a central point, and procuring of rights of way, etc., evidence held to warrant a finding that the president of the corporation who engaged plaintiff was acting within the scope of his authority. 2. CORPORATIONS 388(1)—ACTIONS-LIABILITY—AUTHORITY. The president of a mining company, having suggested that the acquisition of transportation facilities would make the operation of the mine more profitable, was authorized to make a detailed report to the directors. He engaged plaintiff, who procured rights of way, obtained subscriptions, and organized a corporation for the building of an electric road from the mine to another point. The road in fact was never built. Held that, the president being authorized, the mining company could not defeat plaintiff's recovery on the ground that the building of the road was beyond its charter powers. In Error to the District Court of the United States for the Second Division of the Northern District of California; Benj. F. Bledsoe, Judge. Action by C. P. Anderson against the Quicksilver Mining Company, a corporation. There was a judgment for plaintiff, and defendant brings error. Affirmed. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes A. H. Jarman, of San Francisco, Cal., for plaintiff in error. ROSS, Circuit Judge. The defendant in error recovered in the court below judgment for services alleged to have been rendered by him for the plaintiff in error under employment by its president. No question is here made regarding the fact of the performance of the services, nor concerning the value of them. The defense to the action in the court below was, and the basis of the contentions in this court is, that the enterprises in and about which the defendant in error was employed were beyond the scope of the powers conferred on the plaintiff in error by its charter, and, further, that they were not within the usual and ordinary business of the corporation, and therefore that its president was without authority to employ the defendant in error to render the services for which he sued and recovered. The record shows that the plaintiff in error was incorporated by act of the Legislature of the state of New York April 10, 1866 (Laws 1866, c. 470), "by the name, style, and title of 'the Quicksilver Mining Company,' and by such name and title," the act provides, "shall have perpetual succession, and shall be capable of suing and being sued, impleading and being impleaded, and of granting and receiving, in its corporate name, property, real, personal and mixed, and of holding and improving lands in California or elsewhere, and to obtain therefrom any and all minerals and other valuable substances, whether by working or mining, leasing or disposing of privileges to work or mine such lands, or any part thereof, and to erect houses and such other buildings and works as may properly appertain to said business, and to use, let, lease or work the same, and to dispose of the products of all such lands, mines and works as they may deem proper." The act also, among other things, conferred upon the company power to make such by-laws as it should deem proper to enable it to carry out the objects of the corporation, and to alter, amend, add to, or repeal the same, provided that such by-laws should not be contrary to the Constitution of the state or of the provisions of the act of incorporation. The act also authorized the persons therein named as a body politic to elect persons to serve as directors of the corporation, a majority of whom should constitute a quorum for the transaction of business, and to hold their offices until their successors shall have been elected in accordance with the by-laws. It also declared it "lawful for said company to establish the necessary offices for the business of the company wherein their business is located, and to have their principal office in the United States, in such place as they may deem expedient, at which place it shall be lawful to hold all meetings for the transaction of the business of the company." It appears from the record that the chief property of the company is that known as the New Almaden quicksilver mine, situate in, Santa Clara county, Cal., the productive record of which, according to the brief of the plaintiff in error, is more than $150,000,000. It has been operated by the plaintiff in error for more than 40 years. The bylaws of the company provide, among other things, that "the corporate powers of the company shall be exercised by a board of directors, and such officers and agents as they shall appoint," and that the directors shall hold "stated, special, or adjourned meetings at such times and places as they may deem most convenient and consistent with the interests of the company," and that "the directors shall have power to delegate, from time to time, such authority as they may deem necessary to the officers of the company or to any one or more members acting as a committee in order that the business of the company may at all times be transacted with promptness and dispatch." The office of the company was established in New York City, where it has always remained. From June, 1909, until some time in June, 1913, C. A. Nones, a resident of New York, was a member of the board of directors and president of the company, and Miss M. A. Bowe, also of New York, was likewise a member of the board, and its secretary. In February, 1910, J. T. Tatham, who was at the time bookkeeper and cashier of the company at the mine, was by Nones appointed its general manager at a salary fixed by him. In June, 1911, Tatham was elected a director and treasurer of the company, and remained such until both he and Nones were removed from their respective offices by the board of directors in June, 1913. The property of the company is situated about 12 miles southwesterly of the city of San Jose, upon the eastern foothills of the Coast Range, being connected with the city by a boulevard known as the Almaden road. Running through it for about three miles is a creek, called Almaden creek, fed by the waters from the Los Alamedes watershed. The property embraced about 8,500 acres, a large part of which consists of agricultural land. During Nones' presidency of the company he was much of the time at the mine, and certainly its directing head in so far as concerned its usual and ordinary business. While the main business of the company was undoubtedly the mining of quicksilver, which included the use of power developed from the waters upon its land, the record leaves no room for doubt that it also included the management and disposition of the by-products of its ores and of its extensive land holdings and waters and water rights. One of the by-products was paint; and it appears from the evidence without dispute that Nones, while in charge of the property as president, concluded that it was to the interest of the company to build a paint mill, and that upon his recommendation a resolution was adopted by its board of directors authorizing the construction of such a mill, not to exceed a cost of $8,000, and directing such steps to be taken "as may be necessary under the advice of our counsel for the formation of a company to conduct such business, with the understanding that all of the stock is the property of the Quicksilver Mining Company." Payment for the services performed in the procuring of the necessary information upon which that recommendation was made by the president of the company was manifestly just as much obligatory upon it, had the recommendation not been approved, as it was upon its approval. In precisely the same way, as shown by the record, Nones, as president of the company, concluded, while in charge of the property, that |