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it is entitled to charge a fair remuneration for the outlay made by it, and for
the maintenance of the public work which it has constructed.-^ The charging of
an annual sum for the use of its highways by automobiles, instead of a mileage
fee, is clearly a matter within the discretion of the state. No constitutional ob-
jection lies in the way of a legislative body prescribing any mode of measure-
ment to determine the amount it will charge for the privilege it bestows. The

19. Judgment, 99 Ky. 623, 17 Ky. L. and a fee of $5 for each automobile of
Rep. 389, 31 S. W. 486, afifirmed in Hen- 30 horse power and more, and which fixes
derson Bridge Co. v. Commonwealth, 17 a fee of $1 for a license for the driver of
S. Ct. 532, 166 U. S. 150, 41 L. Ed. 953. the first, and $2 for a license for the

The acts of congress prescribing the driver of the second class of automobiles,
height, width of span, etc., of bridges to imposed as a charge for the use of high-
be erected over the Ohio, and declaring ways and to raise revenue to defray their
that they shall be post roads, do not af- cost and repair, is without discrimination
feet the power of the states to tax the against nonresidents, and, while applying
intangible property of the bridge compa- to persons engaged in interstate com-
nies. Henderson Bridge Co. v. Common- merce, is not unconstitutional, as contra-
wealth, 17 S. Ct. 532, 166 U. S. 150, 41 vening the commerce provision of the
L. Ed. 953. federal constitution. Kane v. State, 81

20. Pittsburgh, etc., R. Co. v. Board, N. J. L. 594, 80 Atl. 453, Ann. Cas. 1912D,
172 U. S. 32, 43 L. Ed. 354, 19 S. Ct. 90. 237.

21. Toll bridge.— Southern R. Co. v. P. L. 1908, p. 615, § 4, which fixes an
Mitchell, 139 Ala. 629, 37 So. 85. annual fee of $3 for registering an auto-

22. Tax on receipts from interstate com- mobile of less than 30 horse power, and
merce. — Covington, etc.. Bridge Co. v. a fee of $5 for each automobile of 30
Covington, 89 S. W. 296, 28 Ky. L. Rep. horse power and more, is not unconstitu-
396. tional, as a property tax imposed without

23. Tax on capital stock. — Judgment, regard to the value of the property on
52 N. E. 117, 176 111. 267, affirmed. Keo- which it is made, but is a license tax,
kuk, etc., Bridge Co. v. Illinois, 20 S. Ct. since the character of the tax is not de-
205, 175 U. S. 626, 44 L. Ed. 299. termined by the mode adopted in fixing

24. Tax on automobiles. — The provi- its amount. Kane v. State, 81 N. J. L.
sions of P. L. 1908, p. 615, § 4, which 594, 80 Atl. 453, Ann. Cas. 1912D, 237.
fix an annual fee of $3 for registering an 25. Kane v. State. 81 N. J. L. 594, 80
automobile of less than 30 horse power Atl. 453, Ann Cas. 1912D, 237.



3589 . TAXATION. §§ 3975-3978

only limit upon its power is that the amount charged shall not be unreasonable;
and there is no suggestion that such a condition is created by the present law.^^
Where a city grants an electric railway company exclusively engaged in the
transportation of interstate freight and passengers permission to use certain of
its streets by running its cars over the tracks of a local street railway company
under conditions specified in the contract between the two companies, it can not
impose a special annual tax on the business of such railway, it being a tax on in-
terstate commerce, and the regulation of it under the federal constitution belongs
alone to congress. 2"

§ 3976. Tax on Draymen.— Gen. St. X. J., p. 2236, § 532, grants to the
common council of any borough power to enact ordinances to license and regulate
cartmen, carriages, and vehicles used for the transportation of goods and chattels,
and to fix rates of compensation to be paid for such licenses, for purposes of
revenue. The borough of Atlantic Highlands passed an ordinance imposing an ar-
bitrary annual license tax of $10 on every two-horse truck or vehicle engaged
in the transportation of merchandise, and a tax of $7.50 on every one-hoarse
vehicle similarly engaged. Held, that such ordinance was not an exercise of
police power, but a revenue measure, and was inapplicable to interstate commerce,
though it operated equally on both interstate and domestic commerce, interstate
commerce not being subject to taxation by the states. ^s A franchise tax, imposed
under appropriate statutes of the state of New York upon the Pennsylvania Rail-
road Company for carrying on a cab service wholly within the state, for the
purpose of conveying its passengers to and from its ferry landing in New York
city, the charges for. which are entirely separate from those for other trans-
portation, is not an unconstitutional burden on interstate commerce, but is a tax
upon an independent local service, preliminary or subsequent to any interstate
transportation.-'-*

§ 3977. Tax on Pipe Lines.— Where the business of a pipe line company
consists in the transportation of oil from points in New York and Pennsylvania
to points in New Jersey, and a tax levied by the state of New Jersey, designated
as an annual tax, for the use of the state, by way of a license for the company's
corporate franchise, and consists of a certain per centum of the gross amount
of the company's receipts from the transportation of oil during the year preced-
ing the levy, the amount being such proportion of its gross receipts for the trans-
portation of oil over its whole line as the length of its line in the state bears to the
length of its whole line, the tax is not in violation of the interstate commerce
clause of the constitution of the United States.^o Qil pumped through a pipe
line, on its way from one state to a point in another, is a subject of interstate
commerce, and is exempt from local taxation. ^i

§ 3978. Tax on Warehouses and Elevators.— A state can not tax German
warehouse receij^ts, valuing them at the value of the whiskey they represent,
where it can not tax the whiskey itself, either because it was exported from the

26. Kane v. State, 81 N. J. L. 594, 80 27. City Council v. Augusta, etc. R.

Atl. 45.3, Ann. Cas. 1912D, 2:57. Co., 130 Ga. 815. (51 S. E. 992.

The charging of an annual sum for the 28. Tax on draymen. — Simpson-Craw-

use of its highways by automobiles, under forcl Co. v. Borougli, 158 Fed. 372.

P. L. 1908, p. 615, § 4, instead of a mile- 29. Judgment, (54 N. E. 152, 171 N. Y.

age fee. is a matter clearly within the 354, 98 Am. vSt. Rep. 610, affirmed in Penn-

discretion of the state, and no constitu- sylvania R. Co. v. Knight, 24 S. Ct. 202,

tional objection lies in the way of a leg- 192 U. S. 21, 48 L. Ed. 325.

islative body prescribing any mode of 30. Tax on pipe lines. — Tide Water

measurement to determine the amount it Pipe Co. v. State Board, 57 N. J. L. 516,

will charge for a privilege it bestows. 31 Atl. 220. 27 E. R. A. 684.

Kane v. State, 81 N. J. L. 594, 80 Atl. 453, 31. Prairie Oil, etc., Co. v. Ehrhardt,

Ann. Cas. 1912D, 237. 244 111. 634. 01 N. E. 680.



§§ 3978-3980



CARRIERS.



3590



United States or because of its situs. ^- The fact that grain stored in an elevator
is to be shipped out of the state does not make a state statute requiring a Hcense
for conducting the business of such elevator in the state amount to a regulation
of interstate commerce. ^^ A domestic railroad corporation owning land within
the state, upon which it has a grain elevator and freight warehouse, and several
lines of railroad tracks to afford access to the buildings, but which owns no roll-
ing stock, its entire business consisting in loading, unloading, and storing grain
and other freight in process of interstate transportation, which it receives from
other companies, is liable to a gross earnings tax on its franchise under the laws
of a state taxing railroad companies, it not being engaged in interstate commerce
within the provision of the federal constitution vesting the regulation of inter-
state commerce in congress. ^^

§ 3979. Tax on Packing- Houses. — The license tax imposed by the laws
of Xorth Carolina on packing houses carrying on business in the state, and apply-
ing to a foreign corporation engaged in the slaughtering of animals and the
preparation of their carcasses for food and other purposes, is not an interference
with interstate commerce.^'

§ 3980. The Unit Rule. — When the taxable property of a corporation en-
gaged in interstate commerce is part of a system and has its actual uses only in
connection with other parts of the system, that fact may be considered by the
state in taxing, even though other parts of the system are outside of the state. ^*'
It has been expressly held, where the road of a corporation ran through dift'erent
states, that a tax upon the income or franchise of the road was properly appor-
tioned by taking the whole income or value of the franchise, and the length of
the road within each state, as the basis of taxation. •'5" And the uniform hold-



32. Tax on warehouses and elevators.

— Judgment, Commonwealth v. SeUiger,
98 S. W. 1040. 126 Ky. 66, 39 Ky. L. Rep.
451, reversed in 213 U. S. 200, 53 L. Ed.
161. 29 S: Ct. 449.

33. Judgment, Railroad, etc., Comm. v.
Cargill Co., 77 Minn. 233, 79 N. W. 962,
affirmed in Cargill Co. v. Minnesota, 180
U. S. 452, 45 L. Ed. 619, 21 S. Ct. 423.

34. Connecting Terminal R. Co. v. Mil-
ler, 82 N. Y. S. 582, 84 App. Div. 174,
affirmed in 70 N. E. 472, 178 N. Y. 194.

35. Tax on packing houses. — Lacy v.
Armour Packing Co., 134 N. C. 567, 47
S. E. 53, affirmed in 200 U. S. 226, 50 L.
Ed. 451, 26 S. Ct. 232.

36. The unit rule.— Fargo v. Hart, 193
U. S. 490, 48 L. Ed. 761, 24 S. Ct. 498;
Western Union Tel. Co. v. Taggart, 163
U. S. 1, 41 L. Ed. 49, 16 S. Ct. 1054;
Western Union Tel. Co. v. Gottlieb, 190
U. S. 412, 47 L. Ed. 1116, 23 S. Ct. 730.
See Leloup v. Mobile, 127 U. S. 640, 32
L. Ed. 311, 8 S. Ct. 1380.

The sleepers and rails of a railroad, or
the posts and wires of a telegraph com-
pany, are worth more than the prepared
wood and the bars of steel or coils of
wire, from their organic connection with
other rails or wires and the rest of the
apparatus of a working whole. Fargo v.
Hart, 193 U. S. 490, 48 L. Ed. 761, 24
S. Ct. 498; Western Union Tel. Co. v.
Taggart, 163 U. S. 1, 41 L. Ed. 49, 16
S. Ct. 1054.

37. Delaware Railroad Tax (U. S.), 18
Wall. 206, 21 L. Ed. 888; Erie R. Co. v.



Pennsylvania (U. S.), 21 Wall. 49S, 22
L. Ed. 595. See State Railroad Tax Cases,
92 U. S. 575, 23 L. Ed. 663; Pullman's
Palace Car Co. v. Pennsylvania, 141 U.
S. 18, 35 L. Ed. 613, 11 S. Ct. 876.

An act does not interfere with inter-
state commerce because imposing a priv-
ilege tax on railroad companies according
to mileage, as follows: "Each company
operating or controlling 400 miles or
more of road in this state, for taking up
and transporting freight and passengers
from one point to another in this state.
per annum $10,000; each company operat-
ing or controlling from 100 to 400 miles of
road in this state, for taking up and trans-
porting freight and passengers from one
point in this state to another point in
this state, per annum $5,000;" and in like
language imposing such a tax on railroads
operating or controlling a less number of
miles of road in the state, for the same
privilege. Knoxville, etc., R. Co. v. Har-
ris, 43"S. W. 115, 99 Tenn. 684, 53 L. R.
A. 921.

The defendant railroad company was
organized under a charter from the state
of Maryland, and its line was operated
partly in that state and partly in another.
Held, that a tax by the state of Maryland
on such proportion of the entire gross re-
ceipts of the road as the length of its line
in Maryland bears to the whole length of
its line was not invalid as an interference
with interstate commerce. Cumberland,
etc., R. Co. 7'. State, 48 Atl. 503, 92 Md.
668, 52 L. R. A. 764.



3591



TAXATION.



§ 3980



ing is that the property of interstate railroads, in the several states through which
their lines or business extend, might be valued as a unit for the purposes of tax-
ation, taking into consideration the uses to which it is put and all the elements
making up aggregate value, and that a proportion of the whole fairly and prop-
erly ascertained might be taxed by the particular state, without violating any
federal restriction.^"* The valuation is thus, not confined to the wi'"es, poles and
instruments of the telegraph company ; or the roadbed, ties, rails and spikes of
the railroad company ; or the cars of the sleeping car company ; but includes the
proportionate part of the value resulting from the combination of the means by
which the business was carried on, a value existing to an appreciable extent
throughout the entire domain of operation. ^'-^ So it may be said that a proper
mode of ascertaining the assessable value of so much of the whole property as is
situated in a particular state, is, in the case of railroads, to take that part of the
value of the entire road which is measured by the proportion of its length therein
to the length of the whole,'*" or taking as the basis of assessment such proportion
of the capital stock of a sleeping car company, express company, etc., as the num-
ber of miles of railroad over which its cars are run in a particular state bears to
the whole number of miles traversed by them in that and other states,'*^ or such
a proportion of the whole value of the capital stock of a telegraph company as
the length of its lines within a state bears to the length of its lines everywhere,
deducting a sum ecjual to the value of its real estate and machinery subject to lo-
cal taxation within the state."*- And this latter rule holds good although nothing is,
in terms, directed to be deducted from the valuation, either for the value of its
franchises from the United States, or for the value of its real estate and machin-
ery situated and taxed in other states.^ "^ It is true, there may be exceptional



38. Pittsburgh, etc., R. Co. v. Backus,
154 U. S. 421, 38 L. Ed. 1031, 14 S. Ct.
1114; Indianapolis, etc., R. Co. v. Backus,
154 U. S. 438, 38 L. Ed. 1040, 14 S. Ct.
1114; Adams Exp. Co. v. Ohio State Au-
ditor, 165 U. S. 194, 41 L. Ed. 683, 17 S.
Ct. 305; Cleveland, etc., R. Co. v. Backus,
154 U. S. 439, 38 L. Ed. 1041, 14 S. Ct.
1122; Massachusetts v. Western Union
Tel. Co., 141 U. S. 40, 35 L. Ed. 628, 11
S. Ct. 889; American Exp. Co. v. Indiana,
165 U. S. 255, 41 L. Ed. 707, 17 S. Ct.
991; American Refrigerator Trans. Co. v.
Hall, 174 U. S. 70, 43 L. Ed. 899, 19 S.
Ct. 599; State Railroad Tax Cases, 92 U.
S. 575, 23 L. Ed. 663; Delaware Railroad
Tax (U. S.), 18 Wall. 206, 21 L. Ed. 888;
Erie R. Co. v. Pennsylvania (U. S.), 21
Wall. 492, 22 L. Ed. 595; Western Union
Tel. Co. V. Massachusetts, 125 U. S. 530,
31 L. Ed. 790, 8 S. Ct. 961; Pullman's
Palace Car Co. v. Pennsylvania, 141 U. S.
18, 35 L. Ed. 613, 11 S. Ct. 876; Maine v.
Grand Trunk R. Co., 142 U. S. 217, 35
L. Ed. 994, 12 S. Ct. 121, 163; Charlotte,
etc., R. Co. V. Gibbes, 142 U. S. 386, 35
L. Ed. 1051, 12 S. Ct. 255; Columbus, etc.,
R. Co. V. Wright, 151 U. S. 470, 38 L. Ed.
238, 14 S. Ct. 396; Western Union Tel.
Co. V. Taggart, 163 U. S. 1, 4l' L. Ed. 49,
16 S. Ct. 1054.

39. Pittsburgh, etc., R. Co. V. Backus,
154 U. S. 421, 38 L. Ed. 1031, 14 S. Ct.
1114; Adams Exp. Co. v. Ohio State Au-
ditor, 165 U. S. 194, 41 L. Ed. 683, 17 S.
Ct. 305; American Refrigerator Trans. Co.
V. Hall, 174 U. S. 70, 43 L. Ed. 899, 19
S. Ct. 599; Cleveland, etc., R. Co. v.



Backus, 154 U. S. 439, 38 L. Ed. 1041, 14
S. Ct. 1122; Maine v. Grand Trunk R.
Co., 142 U. S. 217, 35 L. Ed. 994, 12 S.
Ct. 121, 163.

40. Pittsburgh, etc., R. Co. v. Backus,
154 U. S. 421, 38 L. Ed. 1031, 14 S. Ct.
1114; Adams Exp. Co. v. Ohio State Au-
ditor, 165 U. S. 194, 41 L. Ed. 683, 17 S.
Ct. 305; American Refrigerator Trans. Co.
V. Hall, 174 U. S. 70, 43 L. Ed. 899, 19
S. Ct. 599; Cleveland, etc., R. Co. v.
Backus, 154 U. S. 439, 38 L. Ed. 1041, 14
S. Ct. 1122.

41. Sleeping car company — Express com-
pany. — Pullman's Palace Car Co. v. Penn-
sylvania, 141 U. S. 18, 35 L. Ed. 613, 11
S. Ct. 876; American Refrigerator Trans.
Co. V. Hall, 174 U. S. 70, 43 L. Ed. 899,
19 S. Ct. 599.

42. Telegraph company. — Western Union
Tel. Co. V. Taggart, 163 U. S. 1, 41
L. Ed. 49, 16 S. Ct. 1054; Western Union
Tel. Co. V. Massachusetts, 125 U. S. 530,
31 L. Ed. 790, 8 S. Ct. 961; S. C, 141 U.
S. 40, 35 L. Ed. 628, 11 S. Ct. 889.

43. Western Union Tel. Co. v. Massa-
chusetts, 125 U. S. 530, 31 L. Ed. 790, 8
S. Ct. 961; S. C, 141 U. S. 40, 35 L. Ed.
628, 11 S. Ct. 889. See. also, Reagan v.
Mercantile Trust Co., 154 U. S. 413, 38
L. Ed. 1028, 14 S. Ct. 1060; Central Pac.
R. Co. V. People, 162 U. S. 91, 40 L. Ed.
903, 16 S. Ct. 766; Postal Telegraph-Cable
Co. V. Adams, 155 U. S. 688, 39 L. Ed.
311, 15 S. Ct. 263; American Refrigerator
Trans. Co. v. Hall, 174 U. S. 70, 43 L.
Ed. 899, 19 S. Ct. 599; Western Union



§ 3980 CARRIERS. 3592

cases, as for instance, where the terminal faciHties in some large city are of enor-
mous value, and so give to a mile or two in such city a value out of all proportion
to any similar distance elsewhere along the line of road, or where in certain locali-
ties the company is engaged in a particular kind of business requiring for sole use
in such localities an extra amount of rolling stock. "^^ No unconstitutional inter-
ference with interstate commerce is made by the Act of Michigan of June 4, 1897,
levying a specific tax upon the property and business of any railroad corporation
operated within the state and providing that "when the railroad lies partly within
and partly without this state, prima facie the gross income of said company from
such road for the purpose of taxation shall be on the actual earnings of the road in
Michigan, computed by adding to the income derived from the business transacted
by said company entirely within this state such proportion of the income of said
company arising from the interstate business as the length of the road over which
said interstate business is carried in this state bears to the entire length of the
road over which said interstate business is carried." ■^'^

Value of Road Arising from Interstate Transportation.— Where an as-
sessing board is charged with the duty of valuing a certain number of miles of
railroad within a state forming part of a line of road running into another
state, and assesses those miles of road at their actual cash value determined on
a mileage basis, this is not placing a burden upon interstate commerce, beyond
the power of the state, simply because the value of that railroad as a while is
created partly — and perhaps largely — by the iinterstate commerce which it is
doing.'**'

Tax on Basis of Mileage. — The action of state authorities in taking the entire
valuation of the property of a railroad company, without as well as within the
state, and dividing it upon a mileage basis for the purpose of fixing the value
of that within the state for purposes of taxation, is not in violation of the com-
merce clause of the federal constitution.-*''' A state statute provided that railroad,
telegraph, telephone, express, sleeping car, etc., companies, whose lines extend
beyond the limits of the state, should have their intangible property assessed on
the basis of the mileage of their lines within and without the state. But from
the valuation on the mileage basis the value of all tangible property is deducted
before the taxation is applied. So far as the commerce clause of the federal
constitution is concerned, this scheme of taxation is not in contravention
thereof.-*^ The mode which the state of Pennsylvania adopted to ascertain the

Tel. Co. V. Pennsylvania, 195 U. S. 540, 24 S. Ct. 107, 191 U. S. 379, 48 L. Ed. 229.
49 L. Ed. 312, 25 S. Ct. 133; Western 46. Value of road arising from interstate

Union Tel. Co. v. Gottlieb, 190 U. S. 412, transportation.— Cleveland, etc., R. Co. v.

47 L. Ed. 1116, 23 S. Ct. 730. Backus, 154 U. S. 439, 38 h. Ed. 1041, 14

44. Pittsburgh, etc., R. Co. v. Backus, S. Ct. 1122.

154 U. S. 421, 38 L. Ed. 1031, 14 S. Ct. 47. Tax on basis of mileage.— St. Louis,

1114; Western Union Tel. Co. v. Taggart, etc., R. Co. v. Davis, 132 Fed. 629.

163 U. S. 1, 41 L. Ed. 49, 16 S. Ct. 1054. 48. Adams Exp. Co. v. Ohio State Au-

If testimony to this effect was presented ditor, 165 U. S. 194, 41 L. Ed. 683, 17

by the company to the state board, it S. Ct. 305; Adams Exp. Co. v. Kentucky,

must be assumed, in the absence of any- 166 U. S. 171, 41 L. Ed. 960, 17 S. Ct.

thing to the contrary, that such board, in 527.

making the assessment of track and roll- So, in the case of Pittsburgh, etc., R.

ing stock within the state, took into ac- Co. v. Backus, 154 U. S. 421, 38 L. Ed.

count the peculiar and large value of such 1031, 14 S. Ct. 1114, the validity of a state

facilities and such extra rolling stock. tax law, whereby a railroad which tra-

But whether in any particular case such versed several states was valued for the

matters are taken into consideration by purposes of taxation by taking that part

the assessing board does not make against of the value of the entire road which was

the validity of the law, because it does measured by the proportion of the lengtli

not require that the valuation of the prop- of the particular part in that state to that

erty within the state shall be absolutely of the whole road, was upheld. See New

determined upon a mileage basis. Pitts- York, etc., R. Co. v. Pennsylvania, 158 U.

burgh, etc., R. Co. v. Backus, 154 U. S. S. 431, 39 L. Ed. 1043, 15 S. Ct. 896.

421, 38 L. Ed. 1031, 14 S. Ct. 1114. Act Del. April 8, 1869, § 1, provides for

45. Wisconsin, etc., R. Co. v. Powers, a tax upon the net earnings of railroad



3593 TAXATiox. § 3980

proportion of the company's property upon which it should be taxed in that state,
was by taking as a basis of assessment such proportion of the capital stock of the
company as the number of miles over which it ran its cars within the state bore
to the whole number of miles, in that and other states, over which its cars w^ere
run. This was a just and equitable method of assessment; and if it were adopted
by all the states thrpugh which these cars ran, the company would be assessed
upon the whole of its capital stock and no more."*^

Tax Computed upon Relation of Mileage to Gross Income.— The su-
preme court of the United States has expressly held in two cases, where the road
of a corporation ran through ditlerent states, that a tax upon the income or
franchise of the road was properly apportioned by taking the whole income or
value of the franchise, and the length of the road within each state, as the basis
of valuation. 5(' The statute of Michigan passed June 4, 1897, levying a specific
tax upon the property and business of every railroad corporation operated within
the state, providing that when the railroad lies partly within and partly without
the state, prima facie the gross income of said company from such road for the
purposes of taxation shall be on the actual earnings of the road in the state,
computed by adding to the income derived from the business transacted by the
company entirely within the state, such proportion of the income of the said
company arising from the interstate business as the length of the road over
which said interstate business is carried on in the state bears to the entire length
of the road over which said interstate business is carried, is not an unconstitu-
tional interference with interstate commerce. In form the tax is a tax on the
property and business of such railroad corporation operated within the state,
and computed upon certain percentage of gross income.'' ^

Tax Computed upon Relation of Mileage to Capital Stock.— If the
stock of a transportation company be taxed by taking as a basis of assessment
such proportion of its capital stock as the number of miles or railroad over
which its cars are run within the state bear to the whole number of miles over
which its cars are run throughout the United States, such assessment does not
impinge upon the power of congress. ^-

Tax on Value of Use of Property.— The rule of property taxation is that
the value of the property is the basis of taxation. It does not mean a tax upon
the earnmgs which the property makes, nor for the privilege of using the prop-
erty, but rests solely upon the value. But the value of property results from the
use to which it is put and varies with the profitableness of that use, present and

whtn \"^'in?'"F''"''1' ^'''^ ^ ?''r''^'° '^^'' *9. American Refrigerator Trans. Co.



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