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In Error to the Supreme Court of the State of Oklahoma.

Action by Grant N. Jefferson and others against D. N. Fink and Ed Hart as administrators, etc., and others. A judgment for defendants was affirmed by the Oklahoma Supreme Court (155 Pac. 852), and plaintiff's bring error. Affirmed.

this strong evidence the government can, Oklahoma so far as applicable should extend point only to the fact that in the deed, the over and apply to the state. Const. Okl. art. hacienda is first described as "the descrip- admission, the Oklahoma statutes of descent 25, § 2, makes similar provision. Held that, on tion, area and boundaries" thereof "appear supplanted the Arkansas statutes and governed in the title deeds," then as it appears from the descent of Creek allotments. the recent government surveys, and that in the description according to the title deeds, the several sugar mills are named, and following them is the clause, "though it is believed that these mills were destroyed in part at least, by the revolutionists." This recital, itself of ambiguous import, is of no significance. This description was in no way relied upon by the Supreme Court of the Philippine Islands. Their decision was based entirely upon the alleged inclusion of sugar mills and machinery in the phrase, "improvements and accessories." As found by the trial judge, the evidence "shows, without the slightest doubt, that the parties, on striking out said words [the sugar mills] from the document, agreed not to include them in the sale, as demanded by the representative of the vendor, because they were not legally part of the hacienda, for the reason that they had already been sold to Enrique Rueda prior to the preliminary agreement."

Messrs. John T. Hays, of Hobart, Okl., James M. Hays, of Okmulgee, Okl., and Lewis C. Lawson, of Holdenville, Okl., for plaintiffs in error.

Mr. George S. Ramsey, of Muskogee, Okl., for defendants in error.

*Mr. Justice VAN DEVANTER delivered the opinion of the Court.

The title to a Creek allotment is here in controversy. The allotment was made under the Act of March 1, 1901, c. 676, 31 Stat. 861, known as the Original Creek Agreement, and the modifying act of June 30, 1902, c. 1323, 32 Stat. 500, known as the Supplemen

The judgment entered in the Supreme Court of the Philippine Islands is reversed and that entered by the Court of First In-tal Creek Agreement. In 1903 the usual tribstance of Manila is affirmed.

Reversed.

(247 U. S. 288)

JEFFERSON et al. v. FINK et al. (Argued March 22 and 25, 1918. Decided June 3, 1918.)

1. INDIANS

SCENT.

No. 242.

al deeds, approved by the Secretary of the Interior and passing the full title, were issued to the allottee. In June, 1908, she died intestate, leaving her surviving a father, brothers and sisters, but no mother, husband or issue. The survivors, like the allottee, were enrolled members of the tribe, and all were freedmen. In determining who inherit

18-CHANGE IN RULES OF DE-ed the land the courts below applied the Okla

As Congress had previously made the Arkansas statutes relating to descent and distribution applicable to the Indian Territory, the provision of Act June 30, 1902, c. 1323, 32 Stat. 500, that descent and distribution of allotments made under Act March 1, 1901, c. 676, 31 Stat. 861, known as the Original Creek Agreement, providing for descent according to tribal law, should be governed by the Arkansas statutes, was equivalent to a declaration that descent should be in accordance with the local law, and hence the rules of descent were subject to change except as to lands which already had passed by the death of the owner. 2. CONSTITUTIONAL LAW 94 VESTED RIGHTS DEATH OF ANCESTOR - RULES OF

DESCENT.

Until the ancestor dies, there is no vested right in the heir, and rules of descent may be changed by the law-making power.

3. STATES 9-INDIANS-DESCENT AND DIS

TRIBUTION-STATUTES.

The Arkansas statutes of descent and distribution were made applicable to the Indian Territory by various congressional acts and were extended by Act June 30, 1902, c. 1323, 32 Stat. 500, to allotments made to Creek' Indians under Act March 1, 1901, c. 676, 31 Stat. 861. The Enabling Act June 16, 1906, c. 3335, 34 Stat. 267, providing for admission into the Union of the territory of Oklahoma and the Indian Territory as the state of Oklahoma, declared that the laws in force in the territory of

homa law of descent existing at the time of the allottee's death (Jefferson v. Cook, 155 Pac. 852); and the question for decision here is whether under the legislation of Congress an Arkansas law, theretofore put in force in the Indian Territory, should have been applied.

When the allotment was made and the trib-, al deeds issued the land was in the Indian Territory, but before the allottee died that territory and the territory of Oklahoma had become the state of Oklahoma.

In early times, when allotments in fee simple to individual Indians were made only occasionally, there was no congressional enactment prescribing who should inherit allotted land on the death of the allottee, and in such cases it was held that while the tribal relation continued the applicable rule of descent was to be found in the laws and usages of the tribe, and not in the laws of the state or territory in which the land lay. Jones v. Meehan, 175 U. S. 1, 29-32.1 In actual practice this rule proved unsatisfactory, because the tribal laws and usages were generally crude and often difficult of ascertainment; and so in later allotment acts Congress pro

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
120 Sup. Ct. 1. 44 L. Ed. 49.

289

vided that the descent should be according | 425-426, 35 Sup. Ct. 119, 59 L. Ed. 295. The to the state or territorial law. A notable il- allotment in question was made and the triblustration of what came to be the policy of al deeds issued shortly after the act of 1902 Congress on the subject is found in the gen- became effective. And this was followed by eral Allotment Act of February 8, 1887, c. the Act of April 28, 1904, c. 1824, 33 Stat. 573, 119, 24 Stat. 388, the fifth section (Comp. St. § 2, declaring that all statutes of Arkansas 1916, § 4201) of which says that for a desig- theretofore put in force in the Indian Terrinated period the United States will hold the tory should be taken "to embrace all persons land in trust for the allottee, "or, in case of and estates in said territory whether Indian, his decease, of his heirs according to the laws freedmen, or otherwise." of the state or territory where such land is located," and at the expiration of that period will convey the same in fee to the allottee, "or his heirs as aforesaid," and also "that the law of descent and partition in force in the state or territory where such lands are situate shall apply thereto after patents therefor have been executed and delivered." True, that act has no direct application to the lands of the Five Civilized Tribes, of which the Creek tribe is one, but it does throw much light on what was intended by the subsequent legislation relating to the descent of those lands when allotted.

A territorial government never was established in the Indian Territory and it never had a territorial Legislature. Apart from the tribal laws of the Indians, among which were laws relating to descent and distribution, the only laws which became operative there were such as Congress enacted or put in force.

Referring to the purpose with which the Arkansas statutes were put in force in that territory and to their status there, this court said in Shulthis v. McDougal, 225 U. S. 561, 571, 32 Sup. Ct. 704, 707 (56 L. Ed. 1205): "Congress was then contemplating the early inclusion of that territory in a new state, and the purpose of those acts was to provide, for the time being, a body of laws adapted to the needs of the locality and its people in respect of matters of local or domestic concern. There being no local Legislature, Congress alone could merely provisional. * Plainly, its action was intended to be

act.

By the Enabling Act of June 16, 1906, c. 3335, 34 Stat. 267, provision was made for admitting into the Union both the territory of Oklahoma and the Indian Territory as the state of Oklahoma. Each territory had a distinct body of local laws. Those in the Indian Territory, as we have seen, had been put in force there by Congress. Those in the territory of Oklahoma had been enacted by [1, 2] By acts passed in 1890, 1893, 1897 the territorial Legislature. Deeming it betand 1898, Congress manifested its purpose to ter that the new state should come into the allot or divide in severalty the lands of the Union with a body of laws applying with Five Civilized Tribes with a view to the ul-practical uniformity throughout the state, timate creation of a state embracing the In- Congress provided in the Enabling Act (secdian Territory; put in force in the territory tion 13) that "the laws in force in the terriseveral statutes of Arkansas, including chap-|tory of Oklahoma, as far as*applicable, shall ter 49 of Mansfield's Digest relating to descent and distribution; provided that those statutes should apply to all persons in the territory, irrespective of race; and substantially abrogated the laws of the several tribes, including those relating to descent and distribution. Acts May 2, 1890, c. 182, 26 Stat. 81, § 31; March 3, 1893, c. 209, 27 Stat. 645, § 16; June 7, 1897, c. 3, 30 Stat. 83; June 28, 1898, c. 517, 30 Stat. 495, §§ 11 and 26. This was the situation when the act of 1901, known as the Original Creek Agreement, was adopted. That act in the course of providing for the allotment in severalty of the lands of the Creeks revived their tribal law of descent and distribution by making it applicable to their allotments (sections 7 and 28). But the revival was only temporary, for the act of 1902, known as the Supplemental Creek Agreement, not only repealed so much of the act of 1901 as gave effect to the tribal law but reinstated the Arkansas law with the qualification that Creek heirs, if there were such, should take to the exclusion of others. Washington v. Miller, 235 U. S. 422,

1 The repealing and reinstating portion of the act was as follows:

"The provisions of the act of Congress ap

extend over and apply to said state until
changed by the Legislature thereof," and
also (section 21) that "all laws in force in the
territory of Oklahoma at the time of the ad-
mission of said state into the Union shall be
in force throughout said state, except as
modified or changed by this act or by the
Constitution of the state." The people of the
state, taking the same view, provided in
their Constitution (article 25, § 2) that “all
laws in force in the territory of Oklahoma
at the time of the admission of the state in-
to the Union, which are not repugnant to this
proved March 1, 1901,
in so far as they
provide for descent and distribution according to
the laws of the Creek Nation, are hereby repeal-
ed and the descent and distribution of land and
money provided for by said act shall be in ac-
cordance with chapter 49 of Mansfield's Digest
of the Statutes of Arkansas now in force in In-
dian Territory: Provided, that only citizens of the
Creek Nation, male and female, and their Creek
descendants shall inherit lands of the Creek Na-
tion; and provided further, that if there be no
person of Creek citizenship to take the descent
and distribution of said estate, then the inherit-

ance shall go to noncitizen heirs in the order
named in said chapter 49."

There was a like provision, but without the provisos, in the Act of May 27, 1902, c. 888, 32 Stat. 258.

*294

Constitution, and which are not locally inapplicable, shall be extended to and remain in force in the state of Oklahoma until they expire by their own limitation or are altered or repealed by law."

The state was admitted into the Union November 16, 1907; and thereupon the laws of the territory of Oklahoma relating to descent and distribution (Rev. Stat. Okl. 1903, c. 86, art. 4) became laws of the state. Thereafter Congress, by the Act of May 27, 1908, c. 199, 35 Stat. 312, § 9, recognized and treated "the laws of descent and distribution of the state of Oklahoma" as applicable to the lands allotted to members of the Five Civilized Tribes.

As before indicated, the allottee died in June, 1908, and the courts below in determining who inherited the land from her gave effect to the state law of Oklahoma existing at the time of her death.

Two objections to that ruling are pressed on our attention: One that the allotment was made and the tribal deeds issued under the act of 1902, which contained a provision that the descent should be according to the Arkansas law, and that thereby those who would be heirs under that law became invested with a right to inherit which could not be taken away or impaired by subsequent legislation, either federal or state; and the other that, even if Congress possessed the power to substitute some other law of descent, that power was not exercised. Both objections are untenable.

merely provisional. With this in mind it seems very plain that the provisions before quoted from the Enabling Act were intended to result, at the time of the admission of the new state, in the substitution of the Oklahoma law of descent for that of Arkansas theretofore put in force in the Indian Territory. The recognition given to the Oklahoma law by Congress in the act of 1908 hardly can be explained on any other theory.

It well may be, as held below, that the qualification which Congress placed on the application of the local law-then the Arkansas law-by the act of 1902 equally quali fies the application of the Oklahoma law (Washington v. Miller, 235 U. S. 422, 35 Sup. Ct. 119, 59 L. Ed. 295), but that question is not here, for the survivors of the allottee are all Creek citizens. Judgment affirmed.

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Under Judicial Code (Act March 3, 1911, c. 231) § 250, 36 Stat. 1159 (Comp. St. 1916, § 1227), authorizing appeals and writs of error to of the District of Columbia, where the jurisreview final judgments of the Court of Appeals diction of the trial court or a law of the United States is drawn in questicn, but declaring judgments of said court in cases arising under the criminal laws to be final save for the discretionary power of the United States Supreme Court to review the same by certiorari or otherwise, the Supreme Court has no jurisdiction Court of Appeals of the District of Columbia, to review on writ of error a judgment of the which was not final and was rendered in a case arising under the criminal laws, though the conallot-struction of a federal law was drawn in question, as was the jurisdiction of the court wherein the proceedings were begun.

Through congressional action the Arkansas law found in chapter 49 of Mansfield's Digest had become the local law of descent in the Indian Territory, and when the act of 1902 provided that the descent of Creek allotments should be in accordance with that chapter, it was but another way of saying that the descent should be in accordance with the local law. In other words, that act was made to conform to the general policy of Congress in respect of the descent of Indian ments. Other provisions dealt with the estate which the allottee was to receive and showed that it was to be a fee simple. What was said about the rules of descent was purely legislative, not contractual; and its presence in the act gave it no effect that it would not have had as a separate enactment. Like other rules of descent it was subject to change by the law-making power as to any land not already passed to the heir by the death of the owner. Not until the ancestor dies is there any vested right in the heir. Cooley's Constitutional Limitations (7th Ed.)

512.

[3] We have seen that Congress was accustomed to subjecting allotted Indian lands to the local laws of descent, and also that its action in putting the Arkansas law in force in the Indian Territory was intended to be

2. COURTS 388-DISTRICT OF COLUMBIA WRITS-SCOPE.

ing for writs of certiorari, refers to the comAs Code of Law D. C. 1901, § 68, provid mon-law practice, and the writ has always been recognized as an appropriate process for renal, which has proceeded or is proceeding to viewing the proceedings of a subordinate tribujudgment without lawful jurisdiction, a writ of certiorari, directed to the judge of the police court of the District, to bring up the record and proceedings in a prosecution under Food and Drugs Act June 30, 1906, c. 3915, 34 Stat. 768 (Comp. St. 1916, §§ 8717-8728), on the ground the court was without jurisdiction, etc., is not a separate proceeding, but, in view of the common-law use of the writ, should be treated as a step in the prosecution, for, while the writ ran to the police judge by name, it was directed to him in his official capacity as custodian of a judgment of the Court of Appeals of the Disthe record; hence, under Judicial Code, § 250, trict, affirming a judgment quashing the writ,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

could not be reviewed by the United States Su- ted States Attorney, in the name of the repreme Court on writ of error.

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spondent, to quash the writ because the police court had jurisdiction and had assumed jurisdiction of the cause of action involved in the information. Upon consideration the Supreme Court granted this motion, petitioner appealed to the Court of Appeals of the District, that court affirmed the judgment of the Supreme Court (43 App. D. C. 44), and to review the judgment of affirmance the present writ of error was sued out.

[1-3] At the threshold we are confronted

In Error to the Court of Appeals of the with the question whether we have jurisdicDistrict of Columbia.

An information having been filed in the police court of the District of Columbia against William A. Hartranft, charging violation of the Food and Drugs Act of June 30, 1906, he petitioned for a writ of certiorari against Alexander R. Mullowny, Judge of the Police Court. A judgment quashing the writ was affirmed by the Court of Appeals of the District of Columbia (43 App. D. C. 44), and petitioner brings error. Writ dismissed.

Messrs. Matthew E. O'Brien and Henry E. Davis, both of Washington, D. C., for plaintiff in error.

tion to proceed under the latter writ. If we have, it must arise under section 250, Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1087, 1159, Comp. St. 1916, § 1227), which, so far as need be quoted, runs as follows: “Any final judgment or decree of the Court of Appeals of the District of Columbia may be re-examined and affirmed, reversed, or modified by the Supreme Court of the United States, upon writ of error or appeal, in the following cases"-specifying, among others, "cases in which the jurisdiction of the trial court is in issue," and "cases in which the construction of any law of the United States is drawn in question by the defendant," and

Mr. Assistant Attorney General Frierson, then proceeding: "Except as provided in the for defendant in error.

*Mr. Justice PITNEY delivered the opinion

of the Court.

On April 17, 1914, an information in be half of the United States was filed by the United States Attorney in the police court of the District of Columbia against the plaintiff in error (who will be called the petitioner) charging violations of the Food and Drugs Act of June 30, 1906 (34 Stat. 768, c. 3915, Comp. St. 1916, §§ 8717-8728). Having first objected to the jurisdiction of the police court by motion to quash, by demurrer, and by special plea in bar, all of which were overruled by that court, petitioner was arraigned upon the information and pleaded not guilty, after which, and before trial on the merits, he filed in the Supreme Court of the District a petition praying that a writ of certiorari might issue from that court to the present defendant in error as judge of the police court to bring up the record and proceedings, upon the grounds (1) that the police court was without jurisdiction to try petitioner upon the information, for several reasons specified, and (2) that the information did not sufficiently inform petitioner of the nature and cause of the accusation against him, and his trial thereon would deprive him of his constitutional right in that behalf. The writ of certiorari was issued as prayed, return was made setting forth the information and a memorandum of the proceedings thereon, and afterwards a motion was made in the Supreme Court by the Uni

next succeeding section, the judgments and decrees of said Court of Appeals shall be final in all cases arising under the patent

laws, the copyright laws, the revenue laws, the criminal laws, and in admiralty cases." The succeeding section confers upon this, court the discretionary power to review, by certiorari or otherwise, judgments and de crees of the Court of Appeals otherwise made final by section 250.

Our jurisdiction is invoked upon the ground that the police court has not jurisdiction to try the information, and that the construction of the Food and Drugs Act, a law of the United States, is drawn in question by plaintiff in error, who was defendant below. The motion to dismiss is based upon the twofold ground that the case is one arising under the criminal laws, and that the judgment of the court of appeals is not a final judgment within the meaning of the opening words of section 250. If the case is one so arising, or if the judgment is not final, the fact that the jurisdiction of the police court, or the construction of a law of the United States, is in question, will not give us jurisdiction. Chott v. Ewing, 237 U. S. 197, 201, 35 Sup. Ct. 571, 59 L. Ed. 913; see McLish v. Roff, 141 U. S. 661, 12 Sup. Ct. 118, 35 L. Ed. 893. It is conceded by petitioner that the information in the police court presents a case arising under the criminal laws within the meaning of the section, and that this has not proceeded to final judgment; the response to the motion to dismiss being that the proceeding by certiorari in the Su

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*297

auxiliary writ, in aid of a writ of error, to bring up outbranches of the record or other matters omitted from the return.

The first of these functions is the one that now concerns us. Blackstone refers to it in these terms:

preme Court of the District was a separate the ordinary writ of error; and (3) as an and independent proceeding, not arising under the criminal laws, and that this has been finally concluded by the affirmance in the Court of Appeals of the judgment of the Supreme Court, leaving nothing to be done except the issuing of execution for costs. Whether it was a separate and independ-fender after indictment found, during which "Thus much for process to bring in the ofent proceeding must be determined by a constage of the prosecution it is, that writs of cersideration of the nature and office of the tiorari facias are usually had, though they may writ of certiorari, as employed in this case, be had at any time before trial, to certify and and its relation to the criminal proceeding. remove the indictment, with all the proceedings The only provision of the District of Col- risdiction into the Court of King's Bench, which thereon, from any inferior court of criminal juumbia Code respecting this form of writ is is the sovereign ordinary court of justice in in section 68 (Act March 3, 1901, c. 854, 31 causes criminal. And this is frequently done for one of these four purposes; either (1) to Stat. 1189, 1200), which provides: consider and determine the validity of appeals or indictments and the proceedings thereon, and to quash or confirm them as there is cause; or (2) where it is surmised that a partial or insufficient trial will probably be had in the court below, the indictment is removed, in order to have the prisoner or defendant tried at the bar of the Court of King's Bench, or before the justices of nisi prius; or (3) it is so removed, in order to plead the king's pardon there; or (4) to issue process of outlawry against the offender, in those counties or places where the process of the inferior judges will not reach him. Such writ of certiorari, when issued and delivered to the inferior court for removing any record or otherwise, supersedes the jurisdiction of such other proceeding, as well upon indictment as inferior court, and makes all subsequent pro

"The said Supreme Court may, in its appropriate special terms, issue writs of quo warranto, mandamus, prohibition, scire facias, certiorari, injunction, prohibitory and mandatory, ne exeat, and all other writs known in common law and equity practice that may be necessary to the effective exercise of its jurisdiction.' Act March 3, 1901, c. 854, 31 Stat. 1189, 1200. Certiorari always has been recognized in the District as an appropriate process for reviewing the proceedings of a subordinate tribunal when it has proceeded, or is proceeding, to judgment without lawful jurisdiction. Kennedy v. Gorman, 4 Cranch, C. C. 347, Fed. Cas. No. 7702; Bates v. District of Columbia, 1 MacArthur (D. C.) 433, 449. And the pow-ceedings therein entirely erroneous and illegal, er to employ the writ inheres in the Supreme Court of the District as possessing a general common-law jurisdiction and supervisory control over inferior tribunals, analogous to that of the King's Bench. United States v. West, 34 App. D. C. 12, 17. The Court of Appeals, in a recent case, declared:

"There is no statute prescribing the function of, or regulating the procedure by, certiorari in the District of Columbia, hence we must look therefor to the common law. The writ lies to inferior courts and to special tribunals exercising judicial or quasi judicial functions, to bring their proceedings into the superior court, where they may be reviewed and quashed if it be made plainly to appear that such inferior court or special tribunal had no jurisdiction of the subject-matter, or had exceeded its jurisdiction, or had deprived a party of a right or imposed a burden upon him or his property, without due process of law." Degge v. Hitchcock, 35 App. D. C. 218, 226, affirmed 229 U. S. 162, 170, 33 Sup. Ct. 639, 57 L. Ed. 1135.

At the common law certiorari was one of the prerogative or discretionary writs by which the Court of King's Bench exercised its supervisory authority over inferior tribunals, and it was employed in three classes of cases, among others, viz.: (1) To bring up an indictment or presentment before trial in order to pass upon its validity, to take cognizance of special matters, bearing upon it, or to assure an impartial trial; if the accused was in custody, it was usual to employ a habeas corpus as a companion writ; (2) as a quasi writ of error to review judgments of inferior courts of civil or of criminal jurisdiction, especially those proceeding otherwise than according to the course of the common law and therefore not subject to review by

unless the Court of King's Bench remands the record to the court below, to be there tried and determined." 4 Black. Com. 320, 321.

To the same effect is 2 Hale, P. C. 210, where the learned commentator further says:

"If there be an indictment to be removed and the party be in custody, it is usual to have an habeas corpus to remove the prisoner, and a certiorari to remove the record, for as the certiorari alone removes not the body, so the habeas corpus alone removes not the record itself, but only the prisoner, with the cause of his commitment," etc.

See, also, Fitz. Nat. Brev. 245; Bacon's Abr. tit. Certiorari (A); Harris v. Barber, 129 U. S. 366, 369, 9 Sup. Ct. 314, 32 L. Ed. 697.1

1 The use of the writ of certiorari, in conjunction with that of habeas corpus, has been a familiar part of the appellate procedure of this court from an early period, under section 14 of the Judiciary Act of 1789 (1 Stat. 73, 81, c. 20; section 716, Rev. Stat.; section 262, Judicial Code [Comp. St. 1916, § 1239]). Ex parte Burford, Cranch, 448, 2 L. Ed. 495; Ex parte Bollman & Swartwout, 4 Cranch, 75, 101, 2 L. Ed. 554; parte Yerger, 8 Wall. 85, 103, 19 L. Ed. 332; Hyde v. Shine, 199 U. S. 62, 85, 25 Sup. Ct. 760, parte Lange, 18 Wall. 163, 166, 21 L. Ed. 872;

3

Ex

Ex

50 L. Ed. 90. It is obvious that this use of the certiorari is available before conviction, in a prop

er case.

An analogous use of the writ, before Judgment in the court to which it is addressed, arises under section 239 or section 251, Judicial Code (36 Stat. 1157, 1159, Comp. St. 1916, §§ 1216, 1228), where, upon questions of law being certified to us in any case pending in a Circuit Court of Appeals lumbia, this court may require that the whole or in the Court of Appeals of the District of Corecord and cause be sent up to it, and thereupon decide the whole matter in controversy as if it had been brought here by writ of error or appeal.

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