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too late would not be res adjudicata of the rights | homish county property existing at the time of the cross-complainant.

of such transfer, and thereby became liable [Ed. Note.-For other cases, see Judgment, to the original and cross-complainants for Cent. Dig. $ 998; Dec. Dig. @ 569.]

| the payment of the original indebtedness, and Department 2. Appeal from Superior consequently liable to the cross-complainants Court, Grant County; Guy C. Alston, Judge. for any deficiency which might be chargeable

Action by S. K. Painter and Lena Painter, after the foreclosure sale. The cross-comhis wife, against J. A. Macauley and others, plaint was served on the bank, and it made in which E. J. Kennedy and wife filed cross- i answer thereto by a general denial and by an complaints. From a deficiency judgment on affirmative plea to the effect that the actual foreclosure against the defendant Grant Coun- purchaser of the property was one E. J. Dufty Bank, the Bank appeals, and from an or- fey, and that it took the legal title to the der striking the cross-complaint of the de- property as security for certain notes executfendant Ralph C. Bell, trustee, he appeals. ed and delivered to it by Duffey, and for no Judgment as to the Grant County Bank re-other purpose. versed and remanded, with instructions, and On the issues framed between Kennedy and judgment as to Bell affirmed.

the bank a trial was had resulting in findings John Sandidge. of Everett, for appellant to the effect that the bank had assumed and Bell. Hulbert & Husted, of Everett, and Wil-agreed to pay the incumbrances on the propliam M. Clapp, of Ephrata (Troy & Sturde- erty conveyed to it, and in a decree to the vant, of Olympia, of counsel), for appellant effect that the plaintiffs recover over against Grant County Bank Herr. Bayley & Wilson the bank for any deficiency that may remain and Carl E. Croson, all of Seattle, for re- after the sale of the mortgaged property. spondents Kennedy.

From this decree the Grant County Bank

appeals. FULLERTON, J. On November 27, 1911,

After the trial of the issues between the the defendants Kennedy and wife borrowed defendants Kennedy and the Grant County from the respondent S. K. Painter the sum Bank had been concluded, and after the court of $1,500, securing the same by mortgage on had announced its judgment therein, one certain real property situated in Snohomish Ralph C. Bell, as trustee, who was made decounty. Subsequently Kennedy and wife fendant in the original action, filed an answer mortgaged the premises to other parties to and cross-complaint, serving it upon Kennedy secure their several obligations, the total face and wife and the Grant County Bank with value of all of the mortgages aggregating an original summons, seeking a foreclosure of on December 28, 1912, some $4,335. On the certain of the junior mortgages and a sale day last mentioned Kennedy and wife ex- of the property thereunder. A deficiency changed the property for certain property of judgment was also sought against the bank one E. C. Davis situated in Grant county. for any deficiency that should remain after Davis was then president of the appellant the sale of the mortgaged premises and the Grant County Bank, and the deed from Ken- application of the proceeds of the sale pronnedy and wife of the Snohomish county prop- erly applicable thereto in payment of the erty was made to the bank. There was also amount due on the junior mortgages. The a mortgage on the Grant county property, bank moved to strike this complaint as comand the deeds as exchanged severally recited ing too late, which motion the trial court that it was made subject to the incumbrances granted. Bell appeals from the order evion the property therein described. There was dencing the ruling of the court upon the mono recital in either deed that the grantee tion. therein assumed the incumbrances.

[1] Noticing first the appeal of the Grant On January 5, 1914, the respondent Paint County Bank, we are unable to find anything er, his wife joining therein, brought the pres- in the record upon which the judgment against ent action to foreclose the mortgage executed it can rest. It was testified by both Davis to him by Kennedy and wife. In his com- and Kennedy that the property in Grant plaint he made parties defendant the orig-county, given in exchange for the property inal mortgagees, the subsequent lienholders, conveyed to the bank was the property of and the Grant County Bank. In the com- Davis, and that all of the negotiations leadplaint as originally filed he asked for a de- ing up to the exchange were had between Daficiency judgment against all of the defend- vis and Kennedy and their representatives. ants, but subsequently filed a supplemental Davis denied that a promise to assume the pleading disclaiming a right to a deficiency incumbrances was made by any person, Kenjudgment against any of the defendants oth-nedy testified that the promise was made by er than the mortgagors. The bank thereupon Davis, but even he does not say that Davis made no answer to the complaint.

made the promise for or as the representative On February 20, 1914, the defendants Ken- of the bank. In fact, nowhere in the record, nedy and wife filed a cross-complaint in the in so far as we can discover, was the bank's action in which they alleged that the bank, name mentioned in the transaction until all in consideration of the exchange of the prop- of the negotiations were concluded, and notherties before mentioned, assumed and agreed ing remained to be done but execute and promised to assume the incumbrances, and I had power to appoint commissioners to fill two then caused the deed to run in the name of of the vacancies caused by the recall of all

three of the commissioners of a county; Const. the bank, it would not of itself create a lia

art. 11, § 6, providing that the board of county bility on the part of the bank to redeem the commissioners shall fill all vacancies occurring promise. Such a promise does not become in any county office, not applying where the merged in the deed and thereby bind the

offices of all the county commissioners become person to whom it is executed. Indeed, it is

vacant.

[Ed. Note. For other cases, see Counties, only on the principle that such a promise “iscent Dig

Cent. Dig. 8 51; Dec. Dig. Om 43.] not merged in the deed, and is not contradictory, but independent, of it,” that it can be En Banc. Appeal from Superior Court, enforced at all. Ordway V. Downey, 18 Yakima County; E. B. Preble, Judge. Wash. 412, 51 Pac. 1047, 52 Pac. 228, 63 Am. Quo warranto by the State, on the relaSt. Rep. 892. The bank can be held only in tion of Harold B. Gilbert, Prosecuting Attorthe case that it promised to pay the incum ney, against W. L. Dimmick and others. brances. It stands, therefore, in so far as From judgment for defendants, relator apthe record discloses, precisely in the position peals. Affirmed. it would have stood had the property been

Harold B. Gilbert, of North Yakima, for originally conveyed to Davis and by Davis

appellant. Snively & Bounds, of North Yaksubsequently conveyed to it. We conclude, therefore, that the court was

ima, for respondents. in error in entering a deficiency judgment against the Grant County Bank.

MOUNT, J. This is a proceeding in quo [2] On the appeal of the defendant Bell warranto to determine which of two sets of we do not feel inclined to disturb the order persons claiming to be county commissioners of the court. Whether the court would per of Yakima county are entitled to hold such mit the defendant at that late day to come office. The trial court concluded that the reinto the case was a matter largely within spondents, W. L. Dimmick, W. E. Coumbe, its discretion, and this court is not authorized and Yancey Freeman, were the legally qualito disturb its order unless it plainly appears fied commissioners, and entered a judgment that there was an abuse of such discretion to that effect. The relator has appealed We cannot so find. While it is true no for- therefrom. mal default had been entered against the The facts are not in dispute. It appears defendant, yet he was so far negligent that that prior to October 6. 1915. J. Lancaster to grant his request would compel the court J. Stuart, and William Stahlhut, were the to try the action anew.

duly elected and qualified commissioners of [3] Moreover, the answer and cross-com

Yakima county. On that day a recall elecplaint discloses that its chief purpose is to tion was held in compliance with chapter 146 charge the Grant County Bank with the pay- of the Laws of 1913, and these officers were ment of the mortgages. If the bank is liable all recalled. Under the provisions of section for their payment, recovery can be had in an 13 of that at the offic

13 of that act, the offices of all three of the independent action. The order is not res ju

county commissioners became vacant. Theredicata of any right the appellant may have in

upon the Governor appointed Messrs. Dimthat respect.

mick and Coumbe as commissioners for the The judgment is reversed on the appeal of

First and Second districts. These officers the Grant County Bank, and the cause re

then qualified, and appointed Mr. Freeman manded, with instructions to so modify it as

as commissioner of the Third district. Mr. to relieve the bank from any personal liabili

Freeman thereupon qualified as county comty for the obligations mentioned in the plain

missioner. The question in the case is tiffs' complaint. On the appeal of Bell it is

whether the Governor, under the Constituaffirmed.

tion and laws of the state, was authorized

to appoint these commissioners in the place MORRIS, C. J., and ELLIS and CHAD

of those recalled. WICK, JJ., concur.

Section 13 of chapter 146, Acts 1913, p. 461, after providing that after the recall of such

officers and the vacancy of the offices caused STATE ex rel. GILBERT, Pros. Atty., v. DIM

thereby, provides: MICK et al. (No. 13202.)

"And such vacancy shall be filled in the man

ner provided by the Constitution and the laws of (Supreme Court of Washington. Jan. 10, 1916.)

the state of Washington, or the charter and COUNTIES Om43 - COUNTY COMMISSIONERS - ordinances of the municipality, as the case may

APPOINTMENTS TO FILL VACANCIES-POWER be."
OF GOVERNOR.
Under Rem. & Bal. Code, $ 8988, providing

The Constitution (section 6 of article 11) that the Governor has power "to see that all provides': offices are filled, and the duties thereof per- "The board of county commissioners in each formned," and in view of Laws 1913, p. 461, 8 county shall fill all vacancies occurring in any 13, providing that, after the recall of an officer, county, township, precinct, or road district ofthe vacancy shall be filled as provided by the fice of such county by appointment, and officers Constitution and laws of the state, the Governor' thus appointed shall hold office till the next gen

th

eral election, and until their successors are elect-, is sufficient to authorize the appointment. ed and qualified.”

| We think it is not necessary to enter into a It is apparent that this section does not discussion as to the proper construction of control in this case, because at the time of these two constitutional provisions. We the appointment by the Governor, the offices think it is plain that, if the Legislature was of all three of the commissioners of Yakima in session, and a vacancy should occur in a county were vacant on account of the elec- county office for which the Constitution made tion of October 6, 1915. There is no other no provision to fill, the Legislature might provision of the Constitution directly refer fill such vacancy. ring to the manner in which the office of In the case of Farquharson V. Yeargin, county commissioners may be filled when all 24 Wash. 549, 64 Pac. 717, this court held of such offices become vacant at one time. that the Legislature, in the creation of a new

In the case of State ex rel. Pendergast v. county, might authorize the Governor to apFulton, 37 Wash. 271, 79 Pac. 779, where one point commissioners for the new county, and vacancy had occurred, and the Legislature that such authorization was not in contrahad passed an act authorizing the judge of vention of the Constitution. It follows from

uperior court to act with the remain that decision that, if all the commissioners ing members of the board of county commis- of a county are recalled, or for some reason sioners, it was held that the act was in viola- all three of the commissioners' offices should tion of the provisions of the Constitution become vacant upon the happening of some above quoted, and that it was the duty of contingency, the Legislature would clearly the remaining commissioners to fill the va- have a right by legislative act to authorize cancy.

the Governor to fill such offices by appointThe Constitution, at section 5 of article 3, ment on account of the emergency. provides as follows:

The county commissioners of a county are "The Governor may require information in the business agents of the county, and the writing from the officers of the state upon any ordinary business of a county cannot be subject relating to the duties of their respective conducted without their authorization. It offices, and shall see that the laws are faithfully executed."

follows that, when all the offices of county Section 13 of that article provides:

commissioners in a county become vacant, “When, during a recess of the Legislature, a

there is necessarily a cessation of county vacancy shall happen in any office the appoint. | government, and there must be some power ment to which is vested in the Legislature, or lodged somewhere to prevent such hiatus. when at any time a vacancy shall have occurred This has been done by the Legislature. The in any other state office for the filling of which vacancy no provision is made elsewhere in this act

act of 1890 above referred to provides that, Constitution, the Governor shall fill such vacan

in addition to the powers prescribed by the cy by appointment, which shall expire when a Constitution, the Governor has power “to successor shall have been elected and qualified."

see that all offices are filled, and the duties

thereof performed.” We think it is plain The Legislature of 1890 passed an act re

that the Legislature had the right to pass lating to the general powers and duties of

this act, and that, where there is no provithe Governor (Rem. & Bal. Code, $ 8988),

sion in the Constitution for the appointment which provides:

of commissioners of a county, and where a "In addition to those prescribed by the Constitution, the Governor has the power and may

| majority of the offices of the board of county perform the duties prescribed in this and the commissioners become vacant, then it is following sections: * * * (2) To see that all within the power of the Governor to fill such offices are filled, and the duties thereof perform- ! vacancy by appointment. This seems so ed, or in default thereof, apply such remedy as the law allows; and if the remedy is imperfect,

clear that it is not necessary to further inacquaint the Legislature therewith at its next quire into the subject, or discuss decisions session."

from other states upon the question. We It is contended by the respondent that the have no doubt that, under the statute of 1890, provision in section 5 of article 3 of the Con- the Governor was authorized to make the stitution, above quoted, that the Governor appointments which he did make, and that "shall see that the laws are faithfully ex. these officers are de jure officers, and are ecuted,” is sufficient to authorize the ap- qualified county commissioners of Yakima pointment of county commissioners, under county. the circumstances in this case, and that sec- The judgment appealed from is therefore tion 13, to the effect that, when during a affirmed, recess of the Legislature a vacancy shall happen in any office the appointment to MORRIS, C. J., and ELLIS, CHADWICK, which is vested in the Legislature, the Gov- FULLERTON, PARKER, HOLCOMB, and ernor shall fill such vacancy by appointment, MAIN, JJ., concur.

-

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lands," to extend the boundary of the state's STATE V. SCOTT et al. (No. 12526.) tidelands out to the line separating land so con

tinuously covered with water that it might be (Supreme Court of Washington. Jan. 5, 1916.)

? | leased for deep-sea oyster culture. 1. NAVIGABLE WATERS 37—“TIDELANDS" | [Ed. Note.--For other cases, see Navigable -DEEDS-LANDS CONVEYED. Under Laws 1897, p. 230, § 4 (Rem. &

| Waters, Cent. Dig. 88 180–200; Dec. Dig. Om Bal. Code, & 6641), defining "tidelands” as all lands over which the tide ebbs and flows from 4. NAVIGABLE WATERS 37-TIDELANDSthe line of ordinary high tide to the line of LOCATION OF EXTREME Low TIDE mean low tide, and excepting oyster lands, a Where, in a controversy between the state deed issued March 18, 1911, pursuant to a pur- and the grantee in a deed from the state, relachase from the state on July 7, 1900, conveying tive to the ownership of a portion of the bed of "all the tidelands not disposed of by the state Puget Sound, there is extreme doubt whether situate in front of, adjacent to, and abutting on the land in controversy lies below or above the lot 3, * * *" and a deed issued June 18, "extreme low tide" fixed by Laws 1911, p. 130. 1901, conveying "all that portion of the tide- 8.1, subd, 2, as the outer boundary of tidelands, lands of the second class owned by the state the doubt should be resolved in favor of the * # * situate in front of, adjacent to, and state. abutting on lot 4, * * *carried title only [Ed. Note.--For other cases, see Navigable to the lands above the line of mean low tide, Waters, Cent. Dig. $$ 201-226, 285; Dec. Dig. and excepting oyster lands theretofore conveyed m37. under the Callow Act (Rem. & Bal. Code, 88

5. NAVIGABLE WATERS 6806, 6807).

36 – “MEAN LOW

TIDE''-"MEAN LOWER Low TIDE'-'HAB[Ed. Note. For other cases, see Navigable Waters, Cent. Dig. 88 201-226, 285; Dec. Dig.

MONIC PLANE."

The term "mean low tide," as applied to 37.

Puget Sound, signifies the mean or average level For other definitions, see Words and Phrases, of the low tides, including both the long and First and Second Series, Tideland.)

short daily runout. "Mean lower low tide" sig2. NAVIGABLE WATERS m37_"TIDELANDS"nifies the mean level of the daily extreme low

-DEEDS-LANDS CONVEYED—"IN FRONT OF" tides. "Harmonic plane" is the zero adopted --"SOLD OR CONVEYED."

by the United States Coast and Geodetic SurLaws 1911, p. 130, $ 1, subd. 2 (3 Rem. & vey of the Department of Commerce upon which Bal. Code. § 6641), defines "tidelands" as "all its tidal tables, charts, and maps are based. It lands over which the tide ebbs and flows from is an arbitrary plane, and is the lowest plane the line of ordinary high tide to the line of ex- of the tide in the Sound recognized by that detreme low tide, * * * excepting oyster re- partment, being approximately two feet lower serves." Laws 1911, p. 130, $ 2 (3 Rem. & Bal. than mean lower low tide, and approximately Code, 8 6641-1), provides:' "That the * * * four feet lower than mean low tide. preference right to purchase all tidelands of the [Ed. Note.-For other cases, see Navigable second class lying between the line of mean low Waters, Cent. Dig. $$ 180-200; Dec. Dig. Om tide and the line of extreme low tide in front 36.) of all tidelands of the second class heretofore

ore 6. NAVIGABLE WATERS sold or conveyed by the state * * is here

37 - TIDELANDS by granted for * * * ninety days * * * to the

| SUFFICIENCY OF EVIDENCE purchasers, their grantees or successors in inter

Evidence in an action by the state to quiet

title to a portion of the bed of Puget Sound held est, of any tidelands of the second class heretofore sold or conveyed by the state * * *." A deed

to show that the land in controversy lies below dated June 6, 1911, recited that it conveyed "all

the plane of extreme low tide save insignificant tidelands of the second class owned by the state

portions around the border, and that hence a * * * lying between the line of mean low tide

ide deed conveying from the state to defendants and the line of extreme low tide and in front of

nothing below the plane of extreme low tide did

not convey such land, but left the title thereto lots 1, 2, 3 and 4, * * * excepting such portions of said tidelands as are included in said oyster re

in the state. serves and subject to such rights *.* * as may

(Ed. Note.--For other cases, see Navigable have been acquired by the purchaser of any Waters, Cent. Dig. 88 201-226, 285; Dec. Dig. part of said lands as tidelands suitable for the l aw 37.] cultivation of oysters." Held to convey not only 7. ADVERSE POSSESSION 68_TIDELANDSthe tidelands between such lots and oyster lands COLOR OF TITLE. theretofore deeded to others under the Callow

Persons claiming title to the bed of Puget Act, but also any tidelands, if there be any, in Sound beyond the plane of extreme low tide unfront of the lots beyond such intervening oyster der a deed conveying title to them only to the lands to the line of extreme low tide; the words extreme low tide were without color of title, and "in front of," as used in the statute, giving a therefore could not obtain title thereto by adpreference right to purchase, having reference verse possession aided by improvements and payto lands other than those adjoining lands there- | ment of taxes. tofore sold or conveyed, and the Callow Act

1 (Ed. Note.-For other cases, see Adverse Posclaimants, since they did not hold fee-simple title, not being owners of tidelands "theretofore

session, Cent. Dig. 88 387-393; Dec. Dig. Om

68.] sold or conveyed" within the meaning of such statute so as to be entitled to the preference | 8. ADVERSE POSSESSION 7-PRESCRIPTIVE right to purchase tidelands in front of their TITLE-ACQUISITION AGAINST STATE. claims.

Under the express provisions of Rem. &

see Navigable Bal. Code, & 167, adverse possession cannot be Waters, Cent. Dig. 88 201-226,' 285; Dec. Dig. made the basis of title as against the state to 37.

la portion of the bed of Puget Sound. For other definitions, see Words and Phrases. [Ed. Note.--For other cases, see Adverse PosFirst and Second Series, In Front of; Sold and session, Cent. Dig. 88 24-42; Dec. Dig. Om7.] Conveyed.)

Department 1. Appeal from Superior 3. NAVIGABLE WATERS O36-TIDELANDS - Court. Thurston County: 0. E. Claypool. "EXTREME Low TIDE."

The term "extreme low tide" is used in Judge. Laws 1911, p. 130, § 1, subd. 2, redefining "tide- Action by the State against J. H. Scott and

bere- . NAVIGABLI

asers, their grantunety days **

Note

r

cases, see

others. From Judgment for defendants, reserves, and subject to such right, title, or plaintiff appeals. Reversed and remanded, interest as may have been acquired by the with directions.

purchaser of any part of said lands as tideW. V. Tanner, R. D. Campbell, and Lindsay

lands suitable for the cultivation of oysters L Thompson, all of Olympia, for the State.

under any deed or contract heretofore issued Gordon & Easterday, of Tacoma, for respond

Il by the state of Washington."

Much testimony was introduced of experts ents.

from observations taken at the pothole and

as to general tide conditions on Puget Sound ELLIS, J. This is an action by the state

and testimony of witnesses long acquainted of Washington to recover possession of and

with the pothole as to whether it has ever quiet title to a portion of the bed of Puget |

been entirely uncovered at the lowest tides, Sound, commonly known and referred to in

all with the view of determining whether, in the record as the "pothole,” and to enjoin the

fact, the pothole lies below the plane of exdefendants from trespassing thereon. The

treme low tide. defendants admit that the state upon its ad

The court found, in substance, the situation mission into the Union acquired title to the

of the land as we have outlined it, and that pothole by virtue of section 1, art. 17, of the

the defendants had at all times since July, state Constitution, whereby the state assert

1900, been in open, notorious, exclusive, and ed title to the beds and shores of all navi

peaceable possession of the pothole, paying gable waters within its boundaries. They

all taxes thereon since that time; that the contend, however, that the state conveyed the

land described as the pothole lies above the pothole to them by certain deeds of second

line of extreme low tide; that the state of class tidelands which are pleaded in their

Washington does not now, and did not when answer. The state admits the issuance of the

this action was commenced, own the pothole deeds, but denies that they conveyed the pot

or any portion thereof; and that it had failhole or any part of it. The evidence shows

ed to establish the material allegations of its beyond question that the pothole and the chan

complaint. Upon these findings and appro nel leading out of it to deep water lie below

| priate conclusions of law the court entered a the line of mean low tide. Between the pot

decree denying to the plaintiff the relief pray. hole and the strip of tidelands lying in front

ed for and dismissing the action. The plainof and contiguous to government lots 3 and

tiff appeals. 4 are situate certain tideland tracts or oyster

The appellant contends: (1) That the deeds claims forming a continuous chain, deeded to

upon which the respondents rely conveyed no Jim Simmons, J. A. Gale, and J. H. Tobin for

title to the pothole, in that the pothole is not oystering purposes. These oyster claims

in front of and adjoining the upland or any were deeded under the provisions of chapter

tidelands of the second class owned by the 25, Laws of 1895 (Rem, & Bal. Code, 88 6806,

defendants in front of and adjoining the up6807), commonly known as the Callow Act.

land; (2) that the defendants acquired no We shall hereinafter refer to them as the

title to the pothole by any of these deeds, beCallow Claims. The deeds upon which the

cause the evidence shows that the pothole is defendants rely as conveying to them the pot

below the line or plane of extreme low tide. hole are: First, a deed from the state dated

The first of these contentions presents a quesMarch 18, 1911, conveying to the defendant J.

tion of law; the second a question of fact. H. Scott "all of the tidelands undisposed of

[1] 1. At the time that the first two deeds by the state situate in front of, adjacent to,

were initiated by purchase of the tidelands and abutting upon lot 3, section 22, township

therein described, tidelands were defined by 19 north, range 3 west"; second, a deed from

statute as follows: the state dated June 18, 1901, conveying to

"Tide Lands.--All lands over which the tide the defendant J. H. Scott "all that portion of

ebbs and flows from the line of ordinary high the tidelands of the second class owned by tide to the line of mean low tide, * * * and the state of Washington, situate in front of, excepting oyster lands." Chapter 89, § 4, p. adjacent to and abutting upon lot 4, section

230, Laws 1897; 2 Rem, & Bal. Code, $ 6641. 22, township 19 north, range 3 west"; third, | See Pearl Oyster Co. v. Heuston, 57 Wash. a deed from the state dated June 6, 1911, to 533, 107 Pac. 349, 832, 135 Am St. Rep. 1007. both defendants, conveying "all tidelands of The first deed, though issued on March 18. the second class owned by the state of Wash- 1911, was made in pursuance of a purchase ington lying between the line of mean low by George C. 'Israel from the state on July tide and the line of extreme low tide and in 7, 1900, long before the act of 1911, to which front of lots 1, 2, 3, and 4, section 22, town- we shall hereinafter refer, had extended the ship 19 north, range 3 west, W. M., with a outer line of the state's tidelands to the line total frontage of 81.81 lineal chains, more or of extreme low tide. It is clear, therefore, less, measured along the meander line, ac- that this deed conveyed only what Israel had cording to a certified copy of the government purchased, and carried title no further than field notes of the survey thereof on file in the to the line of mean low tide. office of the commissioner of public lands at The second deed of June 18, 1901, likewise Olympia, Wash., excepting such portions of carried title only to the line of mean low tide.

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