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Regulation of Rates and Tolls. — In many instances since the adoption of
the constitution, the states have assumed to fix the rates or tolls upon interstate
ferries, and perhaps in some instances have been recognized as having the au-
thority to do so by the courts of the several states, but there is no case in the
United States court where such right has been recognized.*^- The Interstate
Commerce Act of Feb. 4, 1887, does not deprive a state of any power to fix rates
of ferriage theretofore possessed.*^^ The supreme court of the United States
has not definitely decided that a state can not fix rates for ferriage from itself to
another state, and the former decision in the courts of New Jersey sustaining
such right can not be regarded as in conflict with the federal decisions.^**

License Fees, Tolls and Taxation. — The freedom from imposition guar-
anteed by the constitution does not, of course, imply exemption from reasonable
charges, as compensation for the carriage of persons, in the way of tolls or fares,
or from the ordinary taxation to which other property is subjected, any more than
like freedom of transportation on land implies such exemption. Reasonable
charges for the use of property, either on water or land, are not an interference
with the freedom of transportation between the states secured under the com-
mercial power of congress. That freedom implies exemption from charges other
than such as are imposed by way of compensation for the use of the property em-
ployed, or for facilities afforded for its use, or as ordinary taxes upon the value
of the property.*'^ The right of a state to tax a ship owned by one of her citi-
zens and having its situs within the state, although used in foreign commerce or
in commerce between the states, is distinctly recognized.*'*^ A state has power
to impose a license fee either directly or through one of its municipal corpora-
tions upon the keepers of ferries living in the state, for boats owned by them and
used in ferrying passengers and goods from a landing in the state, across a nav-
igable river, to a landing in another state. *'^''' But where a ferry is incorporated in

61. Ferries. — New York, etc.. R. Co. v. constitution of the United States. Gib-
Board, 74 N. J. L. 367, 65 Atl. 860. bons v: Ogden (U. S.), 9 Wheat. 1, 239,

62. Regulation of rates and tolls.— Cov- 6 L. Ed. 23; Passenger Cases (U. S.), 7
ington, etc.. Bridge Co. v. Kentucky. 154 How. 283, 12 L. Ed. 703; Morgan v Par-
U. S. 204, 38 L. Ed. 962, 14 S. Ct. 1087. ham (U. S.), 16 Wall. 471, 21 L. Ed. 303;

63. Judgment 74 N. J. L. 367, 65 Atl. Wiggins Ferry Co. v. East St. Louis, 107
860, reversed in New York, etc., R. Co. v. U. S. 365, 27 L. Ed. 419, 2 S. Ct. 257.
Board, 76 N. J. L. 664, 74 Atl. 954, 16 Am. 67. Imposition of license fee on boats.

^«?"f J ""■.S,?\t^^^-t o. . a , .. —Wiggins Ferry Co. v. East St. Louis,
G4. Judgment 74 N. J L. 367, 65 AU. 860, ]07 U. S. 365, 27 L. Ed. 419, 2 S. Ct. 257;
reversed m New York, etc., R. Co v. Covington, etc., Bridge Co. v. Kentucky,
Board, 76 N. J L. 664, 74 Atl. 954, 16 Am. 154 u. S. 204, 38 L Ed. 962. 14 S. Ct!
& Eng Ann. Cas. 858. _ 1087; Postal Telegraph-Cable Co. v.
65. License fees, tolls and taxation. — Charleston 153 IJ S 69'' 38 L Ed 871
Gloucester Ferry Co. v. Pennsylvania, 114 14 g. Ct. 1094; Ficklen v. Shelby County
U. S. 196, 29 L. Ed. 158 5 S. Ct. 826; Taxing Dist., 145 U. S. 1, 36 L.'^Ed. 601,
S^^'^-f-.^?; %• 1"^^°^"^' 95 U S. 80, 24 L. 12 S. Ct. 810; Pickard v. Pullman South-
Ed. 37/; Packet Co. r St. Loms, 100 U. grn Car Co., 117 U. S. 34, 29 L. Ed. 785,

r^n TT ~c h\I'^AJ^f'^'/'?^^''%. ''•, ^°'^"' 6 S. Ct. 635; Transportation Co. v. Wheel-
100 U. S. 430, 25 L. Ed. 690; Packet Co. i„g 99 u 'g 073 05 l Ed 41'^ See

!';.f^^'^"^^'"''^- l"-^ U S- 559^ 26 L Ed. also. Fanning "z^. ' Gregoire '(U. '^S.), 16

1169; transportation Co. v. Parkersburg, How 524 14 L Ed 1043

107 U. S. 691, 27 L. Ed. 584, 2 S. Ct. 732. When 'a state expressly grants to an

_ 66. Taxation not within the constitu- incorporated city, the power "to license,

tional restrictions. — The levying of a tax tax, and regulate ferries," the latter may

upon vessels or. other watercraft or the impose a license tax on the keepers of

exaction of a license fee by the state ferries, although their boats ply between

within which the property subject to the landings lying in two different states, ana

exaction has its situs, is not a regulation the act by which this exaction is au-

of commerce within the meaning of the thorized will not be held to be a regula-



.3475



REGULATION AND CONTROL.



§ 3863



one state and all of its property is situated in the state incorporating it, a tax by
.another state is illegal as an interference with the powers of congress to regulate
interstate commerce. *^^ A tax, therefore, upon such receiving and landing of pas-
sengers and freight, is a tax upon the transportation ; that is, upon the commerce
between the two states involved in such transportation. •^'^ Where a license is im-
posed upon transportation across waters which does not constitute a ferry in its
■strict sense, it becomes an illegal regulation of interstate commerce.'^'^ The fact



tion of commerce. Wiggins Ferry Co. v.
'East St. Louis, 107 U. S. 365, 27 L. Ed.
419, 2 S. Ct. 257.

The power to license is a police power,
although it maj- also be exercised for the
purposes of raising revenue. "We can
not say, as a matter of law, that when
a municipal corporation is authorized 'to
regulate, tax, and license ferry boats,' the
imposition of a license fee of $100 per
boat is not within the power to regulate
and license, and is consequently not within
the police power. It follows, therefore,
that the ordinance of the city of East St.
Louis and the charter of the city, by
which the ordinance is authorized, do not
impair the obligation of any contract be-
tween the ferry company and the state."
Wiggins Ferry Co. t-. East St. Louis, 107
U. S. 365, 27 L. Ed. 419, 2 S. Ct. 257.

Neither the free navigation of the Mis-
sissippi River, guaranteed by the ordi-
nance of 1787, nor any right which may
be supposed to arise from the exercise
of the commercial power of congress, in-
-terferes with the police power of the
state in granting ferry licenses. Fanning
V. Gregoire (U. S.), 16 How. 524, 14 L.
Ed. 1043.

68. Taxation on transportation. — Cov-
ington, etc.. Bridge Co. v. Kentucky, 154
U. S. 204, 38 L. Ed. 962, 14 S. Ct. 1087;
Gloucester Ferry Co. v. Pennsylvania,
114 U. S. 196, 29 L. Ed. 158, 5 S. Ct. 826.

The Gloucester Ferry Company was in-
corporated by the legislature of New Jer-
sey to establish a steamboat ferry from
the town of Gloucester, in that state, to
the city of Philadelphia, in Pennsylvania.
It established, and maintained, a ferry be-
tween those places, across the river Del-
aware, leasing or owning steam ferry
boats for that purpose. At each place it
had a slip or dock on which passengers
and freight were received and landed; the
one in Gloucester it owned, the one in
Philadelphia it leased. Its entire business
consisted in ferrying passengers and
freight across the river between those
places. It never transacted any other
business. It did not own any property,
real or personal, in the city of Philadel-
phia other than the lease of the slip or
dock mentioned. All its other property
consisted of certain real estate in the
cotmty of Camden, New Jersey, needed
for its business, and steamljoats engaged
in ferriage. These boats were registered
^t the port of Camden, New Jersey. It

4 Car— 24



has never owned any boats registered at
a port of Pennsylvania, and its boats
were never allowed to remain in that
state except so long as may be necessary
to discharge and receive passengers and
freight. The auditor general and the
treasurer of the state of Pennsylvania
stated an account against the company
of taxes on its capital stock, based upon
its appraised value. Held, that such a
tax by the state was illegal as an inter-
ference with the power of congress to
regulate interstate commerce. Glouces-
ter Ferry Co. v. Pennsylvania, 114 U. S.
196, 29 L. Ed. 158, 5 S. Ct. 826.

The ferry boats of a corporation in-
corporated in one state, and carrying
passengers, etc., forward and back across
a river to a city situated in another state,
are not taxable under a law taxing boats
"within the city," in a case where the re-
lation of the boats to the city was simply
that of contract, as one of the termini of
their voyage. St. Louis v. Ferry Co. (U.
S.), 11 Wall. 423, 20 L. Ed._ 192.

Qusere, whether the taxation by Ken-
tucky of a ferry company's Indiana fran-
chise to transport persons and property
from Indiana to Kentucky is not, by its
necessary effects, a burden on interstate
commerce forbidden by the constitution
of the United States. Louisville, etc.,
Ferry Co. z: Kentucky, 188 U. S. 385, 47
L. Ed. 513, 23 S. Ct. 463.

69. Gloucester Ferry Co. v. Pennsyl-
vania, 114 U. S. 196, 29 L. Ed. 158, 5 S.
Ct. 826; Fargo v. Michigan, 121 U. S. 230,
30. L. Ed. 888, 7 S. Ct. 857.

70. Taxation on transportation not a
ferry in strict sense. — A statute of Illi-
nois required a license where a company
carried on a ferry for transporting rail-
road cars, loaded or unloaded, from a
county in that state to the shore of an-
other state. It was held_ that, conceding,
arguendo, that the police power of a
state extended to the establishment, reg-
ulation and licensing of ferries on a nav-
igable stream, being the boundary be-
tween two states, there were no decisions
justifying the proposition that such power
embraced transportation by water across
such river which did not constitute a
ferry in a strict technical sense. St.
Clair V. Interstate, etc., Transfer Co.,
192 U. S. 454, 48 L. Ed. 518, 24 S. Ct. 300.

It was held that there was an essential
distinction between a ferry in the re-
stricted and legal signification of that



§§ 3863-3864



CARRIERS.



3476



that the boats of a ferry company have been enrolled, inspected, and licensed un-
der the laws of the United States, is no protection against the exaction of a li-
cense fee by the state or by its authority J ^

Landing and Receiving' Passengers and Freight. — The only interference
of the state with the landing and receiving of passengers and freight, which is
permissible, is confined to such measures as will prevent confusion among the
vessels, and collision between them, insure their safety and convenience, and fa-
cilitate the discharge or receipt of their passengers and freight, which fall under
the general head of port regulations. '^2

Injunction. — An injunction to protect the exclusive privilege to a ferry does
not conflict or interfere with the right of a boat to carry passengers or goods in
the ordinary prosecution of commerce without the regularity or purpose of ferry
trips; that remedy applies only to one which is run openly and avowedly as a
ferry boat."^

§ 3864. Granting of Franchises and Control. — The commerce clause
does not prevent a state from granting a ferry license across a navigable river or
water forming one of the boundaries to a state.'^^ It is true that, from the ear-
liest period in the history of the government, the states have authorized and regu-
lated ferries, not only over waters entirely within their limits, but over waters
separating them;"^ and it has been said that the power to establish and regulate
ferries does not belong to congress under the power to regulate commerce, but
belongs to the states, and lies within the scope of that immense mass of undele-
gated powers reserved by the constitution to the states." ''' However, conceding.



term and transportation of railroad cars
across a boundary river between two
states constituting interstate commerce,
and therefore a statute requiring a li-
cense for such transportation was invalid.
St. Clair z'. Interstate, etc.. Transfer Co.,
192 U. S. 454, 48 L. Ed. 518, 2i S. Ct. 300.
71. Boats enrolled and inspected under
United States law. — Wiggins Ferry Co.
V. East St. Louis, 107 U. S. 365, 27 L. Ed.
419, 2 S. Ct. 257.

In Conway v. Taylor (U. S.), 1 Black
603, 17 L. Ed. 191, it was held that the
fact that C. had caused his ferry boat
to be enrolled and licensed, under the
laws of the United States, at the custom
house in Cincinnati, to carry on the coast-
ing trade, did not authorize him to carry
on business of a ferry between Cincin-
nati and Newport, Kentucky, in disre-
gard of the rights of T. who has_ an ex-
clusive license from the authorities of
the state of Kentucky to ferry from Ken-
tucky to the Ohio side of the river.

"This court, in Fanning v. Gregoire
(U. S.), 16 How. 524, 14 L. Ed. J043, has
held that this right of congress 'does not
interfere with the police powers of a
state in granting ferry licenses.' " These
authorities show that the enrollment and
licensmg of a vessel under the laws of
the United States does not of itself ex-
clude the right of a state to exact a li-
cense from h.er own citizens on account
of their ownership and use of such prop-
erty having its situs within the state.
Wiggins Ferry Co. v. East St. Louis,
107 U. S. 365, 27 L. Ed. 419, 2 S. Ct. 257.

72. Regulations of receiving and land-
ing. — Gloucester Ferry Co. :•. Pennsyl-



vania. 114 U. S. 196, 29 L. Ed. 158, 5 S.
Ct. 826.

73. Injunction. — Conwav z'. Taylor (U,
S.), 1 Black 603, 17 L. Ed. 191.

74. Granting of franchises and controL
—Fanning z'. Gregoire ( U. S.), 16 How.
524, 14 L. Ed. 1043; Conway v. Taylor
(U. S.), 1 Black 603, 17 L. Ed. 191; Wig-
gins Ferry Co. v. East St. Louis, 107 U.
S. 365, 27 L. Ed. 419, 2 S. Ct. 257; St.
Clair V. Interstate, etc., Transfer Co., 192
U. S. 454, 48 L. Ed. 518, 24 S. Ct. 300.

In the case of Fanning v. Gregoire (U.
S.), 16 How. 524, 14 L. Ed. 1043, it was
declared by the federal supreme court,
speaking of the charter of Fanning to
ferry across the Mississippi River at Du-
buque, that the exercises of the commer-
cial power by congress did not interfere
with the police power of the state in
granting ferry licenses. Wiggins Ferry
Co. v. East St. Louis, 107 U. S. 365, 2T
L. Ed. 419. 2 S. Ct. 257.

75. Control by states.— St. Clair ?'. In-
terstate, etc.. Transfer Co., 192 U. S.
454, 48 L. Ed. 518, 24 S. Ct. 300; Glou-
cester Ferry Co. v. Pennsylvania, 114 U.
S. 196, 29 L. Ed. 158, 5 S. Ct. 826.

Laws regulating ferries are competent
parts of a mass of legislation embracing
everything within the limits of a state
not surrendered to the national govern-
ment. Gibbons z'. Ogden (U. S.), 9
Wheat. 1, 239, 6 L. Ed. 23; Gloucester
Ferry Co. v. Pennsylvania, 114 U. S. 196,
29 L. Ed. 158, 5 S. Ct. 826; Wiggins-
Ferry Co. z: East St. Louis, 107 U. S.
365. 27 L. Ed. 419, 2 S. Ct. 257.

76. Powers reserved by states. — Con-
way V. Taylor (U. S.), 1 Black 603, 17 L.
Ed. 191.



3477



REGULATION AND CONTROL.



§ 3864



that in many respects the states can more advantageously manage such interstate
ferries than the general government, and that the privilege of keeping a ferry,
with a right to take toll for passengers and freight, is a franchise grantable by the
state, to be exercised within such limits and under such regulations as may be re-
quired for the safety, comfort and convenience of the public,''" still the fact re-
mains that such a ferry is a means, and a necessary means, of commercial inter-
course between the states bordering on their dividing waters, and it must, there-
fore, be conducted without the imposition by the states of taxes or other burdens
u.pon the commerce between them."'^

Ferries between one of the states and a foreign country can not be
deemed, therefore, beyond the control of congress under the commercial power.
They are necessarily governed by its legislation on the importation and exporta-



77. In Fanning v. Gregoiie (U. S.), 16
How. 524, 14 L. Ed. 1043, it was held
that neither the free navigation of the
Mississippi, guaranteed liy the ordinance
of 1787, nor any right which niaj' be sup-
posed to arise from the exercise of the
commercial power of congress, interferes
with the police powers of a state in
granting ferry licenses. When navigable
rivers within the commercial powers of
the Union may be obstructed, one or
both of these powers may be invoked.
Cited in Conway v. Taylor (U. S.), 1
Black 60.3, 17 L. Ed. 191. Wiggins Ferry
Co. V. East St. Louis, 107 U. S. 365, 27
L. Ed. 419, 2 S. Ct. 257; St. Clair v. In-
terstate, etc.. Transfer Co., 192 U. S. 454,
48 L. Ed. 518, 24 S. Ct. 300.

In Conway v. Taylor (U. S.), 1 Black
603, 17 L. Ed. 191, a ferry franchise on
the Ohio was held to be grantable under
the laws of Kentucky to a citizen of that
state who was a riparian owner on the
Kentucky side. It was said not to be
necessary to the validity of the grant
that the grantee should have the right
of landing on the other side or beyond
the jurisdiction of the state. The opin-
ion, however, did not pass upon the
question of the right of one state to reg-
ulate the charge for ferriage, nor does
it follow that because a state may au-
thorize a ferry from its own territory
to that of another state, it may regulate
the charges upon such ferry. It is true
the states have assumed the right in a
number of instances, since the adoption
of the constitution, to fix the rates or
tolls upon interstate ferries, and perhaps
in some instances have been recognized
as having the authority to do so by the
courts of the several states. But there
is no case in the federal supreme court
where such right has been recognized.
Cited in Covington, etc., Bridge Co. v.
Kentucky, 154 U. S. 204, 38 L. Ed. 962. 14
S. Ct. 1087; Wiggins Ferry Co. v. East
St. Louis, 107 U. S. 365, 27 L. Ed. 419,
2 S. Ct. 257.

The essential distinction between a
ferry in the restricted and legal signifi-
cation of tliat tc-rni and transixirtation
as such cfjnstituliiig interstate commerce
was poiiUcdly emphasized in the oijiiiion



in Conway v. Taylor (U. S.), 1 Black 603,
17 L. Ed. 191, and the distinction be-
tween the two was necessarily involved,
if it may not be said to have been con-
trolling, in the decision of that case. St.
Clair V. Interstate, etc., Transfer Co., 3 92
U. S. 454, 48 L. Ed. 518, 24 S. Ct. 300.

78. Ferry as a means of commerce. —
Gloucester Ferry Co. v. Pennsylvania, 114
U. S. 196, 29 L. Ed. 158, 5 S. Ct. 826; St.
Clair V. Interstate, etc., Transfer Co.. 192
U. S. 454, 48 L. Ed. 518, 24 S. Ct. 300.

Ferries over watercourses separating
states are not beyond the control of the
commercial power of congress. Glouces-
ter Ferry Co. v. Pennsylvania, 114 U. S.
.196, 29 L. Ed. 158, 5 S. Ct. 826.
1 In Gibbons v. Ogden (U. S.), 9 Wheat.
1, 6 L. Ed. 23, it was said that laws re-
specting ferries constitute a component
part of the legislation embracing every-
thing within the limits of a state not
surrendered to the general government.
"But in this language he plainly refers to
ferries entirely within the state, and not
to ferries transporting passengers and
freight between the states and foreign
countries; for the power vested in con-
gress, he says, comprehends every species
of commercial intercourse between United
States and foreign countries * * * and
what is true of foreign commerce is also
true of commerce between states over the
waters separating them." Gloucester
Ferry Co. v. Pennsylvania, 114 U. S. 196,
29 L. Ed. 158, 5 S. Ct. 826.

Congress has passed various laws re-
specting such international and interstate
ferries, the validity of which is not open
to question. Gloucester Ferry Co. v.
Pennsylvania, 114 U. S. 196. 29 L. Ed.
158, 5 S. Ct. 82C).

The states, in conferring ferry rights,
may pass laws so infringing the commer-
cial power of tlie nation tiiat it would be
the duty of the federal supreme court to
annul or control them. The function is
one of extreme delicacy, and only to be
performed where the infraction is clear.
Conway v. Taylor (U. S.), 1 Black 603,
17 L. Ed. 191; Pennsylvania v. Wliceling,
etc., Bridge Co. (U. S.), 13 How. 518, 14
L. Ed. 249.



§§ 3864-3865



CARRIERS.



3478



tion of merchandise and the immigration of foreigners, that is, are subject to its
regulation in that respect; and if they are not beyond the control of the commer-
cial power of congress, neither are ferries over waters separating states.''"'^

Concurrent Action of Both States. — The concurrent action of two states
is not necessar}' to the grant of a ferry franchise on a river that divides them.^'^
The ferry franchises which the 'state grants are confined to the transit from her
own shores, and she leaves other states to regulate the same rights on their side.^^

§ 3865. Ships. — So far as respects the ports and harbors within the United
States, ships engaged in interstate or foreign commerce are entered and cargoes
discharged or laden on board, independently of any control over them, except as
it respects such municipal and sanitary regulations of the local authorities as are
not inconsistent with the constitution and laws of the general government, to
which belongs the regulation of commerce with foreign nations and between the
states.^- A municipal ordinance prescribing where a vessel may lie in the harbor,
how long she may remain there, what light she must show at night, and making
other similar regulations, is not in conflict with any law of congress regulating
commerce, or with the general admiralty jurisdiction conferred on the courts of
the United States. ^^ But a state law which requires a vessel before leaving the
port to file a statement in writing, in the office of the probate judge of the county,
setting forth the name of the vessel, the name of the owner or owners and his or
their place of residence, and the interest each has in the vessel, is held to be in
conflict with certain regulations by congress and void, so far as it applied to ves-
sels licensed under United States laws.^'*

Compensation for Additional Facilities. — The state has a right to improve
the waterways within its limits and to make reasonable charges for the use of
such improvements, at least until congress interferes, and either itself assumes



79. Ferries between one of the states
and foreign countries. — Gibbons v. Og-
den (U. S.), 9 Wheat. 1, 6 L. Ed. 23;
Gloucester Ferry Co. v. Pennsylvania, 114
U. S. 196. 29 L. Ed. 158, 5 S. Ct. 826; St.
Clair V. Interstate, etc.. Transfer Co., 192
U. S. 454, 48 L. Ed. 518, 24 S. Ct. 300.

80. Concurrent action of states. — Con-
way V. Taylor (U. S.), 1 Black 603, 17 L.
Ed. 191; St. Clair v. Interstate, etc.,
Transfer Co., 192 U. S. 454, 48 L. Ed. 518,
24 S. Ct. 300.

A ferry franchise on the Ohio is grant-
able, under the laws of Kentucky, to a
citizen of that state who is a riparian
owner on the Kentucky side; and it is
not necessary to the validity of the grant
that the grantee should have a right of
landing on the other side or beyond the
uirisdiction of the state. Conway v.
Taylor (U. S.), 1 Black 603, 17 L. Ed. 191.

A ferry franchise granted by Indiana
to maintain a ferry from the Indiana
shore is wholly distinct from a franchise
obtained from Kentucky to maintain the
ferry from the Kentucky shore, although
the enjoyment of both are essential to a
complete ferry right for the transporta-
tion of persons and property across the
river both ways. Louisville, etc., Ferry
Co. V. Kentucky. 188 U. S. 385, 47 L.
Ed. 513, 23 S. Ct. 463.

81. Conway v. Tavlor (U. S.), 1 Black
603, 17 L. Ed. 191; St. Clair v. Interstate,
etc., Transfer Co.. 192 U. S. 454, 48 L.
Ed. 518, 24 S. Ct. 300; Louisville, etc.,



Ferry Co. v. Kentucky, 188 U. S. 385, 47
L. Ed. 513, 23 S. Ct. 463.

The authority of a ferry company, de-
rived from a franchise granted by Ken-
tucky, to transport persons, freight and
property across the Ohio River from Ken-
tucky, does not invest it with authority
to establish and maintain a ferry from
the Indiana shore to the Kentucky shore.
Louisville, etc.. Ferry Co. v. Kentucky,
188 U. S. 385, 47 L. Ed. 513, 23 S. Ct. 463.

82. Ships. — Hays v. Pacific Mail Steam-
ship Co. (U. S.), 17 How. 596, 15 L. Ed.
254; Gloucester Ferry Co. v. Pennsyl-
vania, 114 U. S. 196, 29 L. Ed. 158, 5 S.
Ct. 826.

83. Brig James Gray v. Ship John Fra-
ser (U. S.). 21 How. 184, 16 L. Ed. 106.
See, also, Hennington v. Georgia, 163 U.
S. 299, 41 L. Ed. 166, 16 S. Ct. 1086.

84. The law of the state of Alabama
passed in 1854, as set forth in the text.
is in conflict with the act of congress



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