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their effect, whether complete or not, Walsh as superintendent of public would expend itself upon the people of works of the state of New York, is so the state of New York in their public clear, and the fact that the proceedings and corporate capacity. Section 47 of are in essence suits against the state the Canal Law provides for an action without its consent is so evident, that before the court of claims for certain instead of permitting them to run their kinds of damages arising from the use slow course to final decree, with inevitaor management of the canals; but in ble futile result, the writ of prohibition terms it is provided that this "shall not should be issued as prayed. Ex parte extend to claims arising from damages Simons, 247 U. S. 231, 239, 62 L. ed. resulting from the navigation of the 1094, 1096, 38 Sup. Ct. Rep. 497; Ex canals." There is no suggestion that the parte Peterson, 253 U. S. 300, 305, 64 superintendent was or is acting under L. ed. 919, 921, 40 Sup. Ct. Rep. 543. color of an unconstitutional law, or Rule absolute for a writ of prohibiotherwise than in the due course of his tion. duty under the Constitution and laws of the state of New York. In the fullest sense, therefore, the proceedings are shown by the entire record to be in their EX PARTE: IN THE MATTER OF THE

STATE OF NEW YORK et al., Owners nature and effect suits brought by indi

of the Steam Tug Queen City, Petition. viduals against the state of New York, and therefore--since no consent has been given-beyond the jurisdiction of

(See S. C. Reporter's ed. 503-511.) the courts of the United States.

Admiralty evidence '- state ownerThere is no substance in the conten

ship of vessel suggestion of attor. tion that this result enables the state of

ney general. New York to impose its local law upon i. The verified suggestion presented by the admiralty jurisdiction, to the detri- the attorney general of the state in his offiment of the characteristic symmetry and cial capacity as representative of the state uniformity of the rules of maritime law and the people thereof, that a vessel libeled insisted upon in Workman v. New York, in admiralty is the property of the state, 179 U. S. 552, 557-560, 45 L. ed. 314, in its public governmental service, amounts

in its possession and control, and employed 319, 320, 21 Sup. Ct. Rep. 212; Southern to an official certificate concerning a public P. Co. v. Jensen, 244 U. S. 205, 215, 61 matter presumably within his official knowlL. ed. 1086, 1098, L.R.A.1918C, 451, 37 edge, and ought to be accepted as sufficient Sup. Ct. Rep. 524, Ann. Cas. 1917E, 900, evidence of the fact,—at least, in the ab14 N. C. C. A. 596; Union Fish Co. v. sence of special challenge. Erickson, 248 U. S. 308, 313, 63 L. ed. (For other cases, see Admiralty, III. i, 1, in

Digest Sup. Ct. 1908.) 261, 263, 39 Sup. Ct. Rep. 112; Knicker

Admiralty jurisdiction vessel bocker Ice Co. v. Stewart, 253 U. S. 149, owned by state. 160, 64 L. ed. 834, 839, 11 A.L.R. 1145, 2. A vessel, the property of a state, in 40 Sup. Ct. Rep. 438. The symmetry its possession and control, and employed in and harmony maintained in those cases its public governmental service, is exempt consists in the uniform operation and from seizure by admiralty process in rem. effect of the characteristic principles Forcother cases, soes Admiralty, I. e, i, in

Digest Sup. Ct. 1908. and rules of the maritime law (503) as a body of substantive law, operative

[No. 26, Original.] alike upon all who are subject to the

Argued December 14, 1920. Decided June jurisdiction of the admiralty, and bind

1, 1921. ing upon other courts as well. Chelentis v. Luckenbach S. S. Co. 247 U. S. 372,

N

tion and/or a Writ of Mandamus Sup. Ct. Rep. 501. It is not inconsistent to prevent the District Court of the in principle to accord to the states, United States for the Western District which enjoy the prerogatives of sover- of New York from seizing by admiralty eignty to the extent of being exempt process in rem a vessel alleged to be from litigation at the suit of individuals state property. Rule for Writ of Proin all other judicial tribunals, a like ex- hibition made absolute. emption in the courts of admiralty and

The facts are stated in the opinion. maritime jurisdiction.

The want of authority in the District Note.-On admiralty jurisdiction, genCourt to entertain these proceedings in erally—see notes to Glass v. The Betsy, personam under Rule 59 (now 56), 1 L. ed. U. S. 489, and United States v. brought by the claimants against Mr.I Bevans, 4 L, ed. U. S. 404.

1063

382, 384

, 62 L. ed. 1171, 1175, 1176, 38 ON PETITION for a Writ of Prohibi

as

Mr. Edward G. Griffin argued the Workman v. New York, 179 U. S. 552, cause, and, with Mr. Charles D. Newton, 45 L. ed. 314, 21 Sup. Ct. Rep. 212; The Attorney General of New York, filed a Lake Monroe (Re United States) 250 brief for petitioners.

U. S. 246, 63 L. ed. 962, 39 Sup. Ct. Rep. For contentions of counsel, see their 460; Knickerbocker Ice Co. v. Stewart, brief as reported in Re New York, ante, 253 U. S. 149, 64 L. ed. 834, 11 A.L.R. 1057.

1145, 40 Sup. Ct. Rep. 438; Southern P.

Co. v. Jensen, 244 U. S. 205, 61 L. ed. Mr. Irving W. Cole argued the cause, 1086, L.R.A.1918C, 451, 37 Sup. Ct. Rep. and, with Mr. Thomas P. Haley, filed a 525, Ann. Cas. 1917E, 900, 14 N. C. C. A. brief for respondent:

596; Union Fish Co. v. Erickson, 248 This application does not involve a U. S. 308, 63 L. ed. 261, 39 Sup. Ct. Rep. question of jurisdiction, and, even if it 112; Clarke v. New Jersey Steam Nay. does, the case is not one for interference Co.'1 Story, 531, Fed. Cas. No. 2,859 ; by prohibition or mandamus,

The John G. Stevens, 170 U. S. 113, 42 The Moses Taylor, 4 Wall. 411, 18 L. L. ed. 969, 18 Sup. Ct. Rep. 544; The ed. 397; The Hine v. Trevor, 4 Wall. 555, Siren, 7 Wall. 152, 19 L. ed. 129; The 18 L. ed. 451; American S. B. Co. v. Lottawanna (Rodd v. Heartt) 21 Wall. Chase, 16 Walí. 522, 529, 21 L. ed. 369, 558, 22 L. ed. 654; Ex parte Easton, 95 371; The Jefferson, 215 U. S. 130, 54 U. S. 68, 24 L. ed. 373; The Jerusalem, L. ed. 125, 30 Sup. Ct. Rep. 54, 17 Ann. 2 Gall. 191, Fed. Cas. No. 7,293; De Cas. 907; The Ira M. Hedges, 218 U. S. Lovio v. Boit, 2 Gall. 398, Fed. Cas. No. 264, 54 L. ed. 1039, 31 Sup. Ct. Rep. 17, 3,776; Clarke v. New Jersey Steam Nav. 20 Ann. Cas. 1235; Illinois C. R. Co. v. co. 1 Story, 531, Fed. Cas. No. 2,859; Adams, 180 U. S. 28, 45 L. ed. 410, 21 Waring v. Clarke, 5 How. 441, 473, 12 Sup. Ct. Rep. 251; Ex parte Gordon, 104 L. ed. 226, 241. U. S. 515, 26 L. ed. 814; Workman v. New York, 179 U. S. 552, 45 L. ed. 314,

Mr. Justice Pitney delivered the opin21 Sup. Ct. Rep. 212; The Lake Monroe ion of the court: (Re United States) 250 U. S. 246, 63 L.

In ed. 962, 39 Sup. Ct. Rep. 460; Re Rice, Gahan and another,

October, 1920, Martin J. Mc

administra155 U. S. 396, 39 L. ed. 198, 15 Sup. Ct.

tors of Evelyn McGahan, deceased, Rep. 149; Re New York & P. R. S. S.

filed a libel in Co. 155 Ú. S. 523, 39 L. ed. 246, 15 Sup. district court of the United States

admiralty in the Ct. Rep. 183; Re Cooper, 143 U. S. 472, for the western district of New York, 36 L. ed. 232, 12 Sup. Ct. Rep. 457; Ex against the steam tug Queen City, her parte Detroit River Ferry Co. 104 U. S. tackle, apparel, and furniture, to recov519, 26 L. ed. 815; Commissioner of Patents v. Whiteley, 4 Wall. 522, 18 L: tained through the death of deceased by

er damages alieged to have been sused. 335; South Carolina v. Wesley, 155 | drowning, due to the negligent operaU. S. 542, 39 L. ed. 254, 15 Sup. Ct. Rep. tion of the Queen City upon the Erie 230; Ex parte Pennsylvania, 109 U. S.

canal, in said district. The attorney 174, 27 L. ed. 894, 3 Sup. Ct. Rep. 84; Ex parte Hagar, 104 U. S. 520, 26 Ľ. ed. general of the state of New York ap816; Re Engles, 146 U. S. 357, 36 L. ed. tioning the jurisdiction of the court,

peared specially for the purpose of ques1003, 13 Sup. Ct. Rep. 281; Re Morrison, and filed a verified suggestion of the 147 U. S. 14, 37 L. ed. 60, 13 Sup. Ct. want of such jurisdiction over the Queen Rep. 246; Re Huguley Mfg. Co. 184 U. City, for the reason that at all times S. 297, 46 L. ed. 549, 22 Sup. Ct. Rep. mentioned in the libel and at present she 455; Alexander v. Crollott, 199 U. S. 589, 50 L. ed. 317, 26 Sup. Ct. Rep. 161; of New York, in its possession and con

was the absolute property of the state Consolidated Rubber Tire Co. v. Fergu- trol, and employed in the public service son, 106 C. C. A. 330, 183 Fed. 756; Re of the state for governmental uses and Fassett, 142 U. S. 479, 35 L. ed. 1087, 12 Sup, Ct. Rep. 295; Smith v. Whitney, purposes

, and, at the times mentioned in 116 U. S. 167, 29 L. ed. 601, 6 Sup. c† the libel, was authorized by law to be Rep. 570; Ex parte Easton, 95 U. s employed only for the public and gov68, 24 L. ed. 373; Scully v Bird, 209 ernmental uses and purposes of the state U. S. 481, 52 L. ed. 899, 28 Sup. Ct. of New York, such purposes being the Rep. 597.

repair and maintenance of the imThe objections here presented by the proved Erie canal, a public work owned state, founded on its sovereign attri- and operated by the state, and parbutes, cannot, on the merits or otherwise, ticularly the towing of dredges, the prevail.

carrying of material and workmen,

Of course,

the towing of barges and vessels con-, its ownership and character came not taining material, and the setting, re- through official channels, but from priplacing, and removing of buoys and vate counsel appearing as amici curiæ, safety devices. He prayed that the who, on being challenged to submit proof vessel be declared immune from process in support of the allegations in the sugand free from seizure and attachment, gestion, refused to do so. and [509] that the libel and all pro- there were other and more fundamental ceedings thereunder be dismissed for differences, but it is the one mentioned want of jurisdiction.

that especially concerns us upon the The district court overruled the sug- question of practice. gestion and awarded process in rem, Accepting, as we do, the facts stated under which the Queen City was arrest in the suggestion of the attorney gened. Thereupon the attorney general, in eral, the record-aside from whether a behalf of the state, filed in this suit in admiralty brought by private court, under leave granted, a peti- parties through process in rem against tion for a writ of prohibition to re-property owned by a state is not in efquire the district court to desist from fect a suit against the state, barred by further exercise of jurisdiction, and for the general principle applied in Ex parte a mandamus to require the entry of an New York, No. 25, Original-presents order declaring the Queen City to be im- the question whether the proceeding can mune from arrest. An order to show be based upon the seizure of property cause was issued, to which the district owned by a state, and used and emjudge made return, embodying by refer-ployed solely for its governmental uses ence the admiralty proceedings; and the and purposes. matter was argued together with No. 25, By the law of nations, a vessel of Original, Ex parte New York, just de- war owned by a friendly power and emvided [256 U. S. 490, ante, 1057, 41 Sup. ployed in its service will not be subCt. Rep. 588).

jected to admiralty process; and this To the suggestion that the Queen City upon general grounds of comity and polis the property of the state of New icy. The Exchange v. M'Faddon, 7 York, in its possession and control, and Cranch, 116, 144-147, 3 L. ed. 287, 296, employed in its public governmental 297. In a case before Judge Francis service, it is objected at the outset that Hopkinson in the admiralty court of the record and proceedings in the suit Pennsylvania in 1781, on a plea to the in admiralty do not disclose the identity jurisdiction, it was adjudged that of the owner of the vessel, or that she marines enlisting on board a ship of war was employed in the governmental serv- or vessel belonging to a sovereign inice of the state. We deem it clear, how- dependent state could not libel the ship ever, that the verified suggestion pre- for their wages. Moitez v. The South sented by the attorney general of that Carolina, Bee, 422, Fed. Cas. No. 9697. state, in his official capacity as repre-i The question whether, by international sentative of the state and the people law, the rule of the Exchange is to be thereof, amounts to an official certificate applied to other kinds of public vessels concerning a public matter presumably owned or controlled by friendly powers within his official knowledge, and that (see The Parlement Belge (1880] L. R. it ought to be accepted as sufficient evi- 5 Prob. Div. 197, 42 L. T. N. S. 273, 28 dence of the fact; at least, in the ab-Week. Rep. 642, 4 Asp. Mar. L. Cas. sence of special challenge. The sugges- 234), was stirred in Re Muir, supra, but tion was overruled and denied, with found unnecessary to be decided. It costs, and process thereupon ordered to does not now press for solution; for, issue against the vessel, without any in- aside from the obligations of internatimation that there was doubt about the tional [511] law, though upon princifacts stated in the suggestion, or oppor- ples somewhat akin, it is uniformly held tunity given to verify them further. It in this country that even in the case of would be an unwarranted aspersion up- municipal corporations, which are not on the honor of a great state to treat endowed with prerogatives of sovereignfacts thus solemnly certified by its chief ty to the same extent as the states by law officer, and accepted as true when which they are created, yet, because they passed upon by the district court, as exercise the powers of government for now requiring (510) verification. Re local purposes, their property and reveMuir, decided January 17, 1921 [254 U. nue necessary for the exercise of those S. 522, ant 383, 41 Sup. Ct. Rep. 185], powers are to be considered as part of differs widely, for there the suggestion the machinery of government, exempt that the vessel was exempt because of I from seizure and sale under process

against the city. As Mr. Chief Justice of the overcharges if the ordinance should Waite said, speaking for this court in be held valid, extends to overcharges after Klein v. New Orleans, 99 U. S. 149, 150, the date of the decree, and precludes a fur25 L. ed. 430, 431: "To permit a 'cred" ther hearing in the case as to whether the itor to seize and sell them to collect history since the decree, because of changed

rates may not have become noncompensadebt would be to permit him in some de conditions, since the ordinance, being pregree to destroy the government itself." sumptively valid, is of continuing force unThe rule was applied in the admiralty til set aside by judicial decree as the result by the same learned Chief Justice, sit- of an investigation in which the burden of ting on appeal at the circuit, in The Fi- proof is upon the company, although the delity, 16 Blatchf. 569, Fed. Cas. No. decree, having been made "without preju4,758, upon a well-considered opinion. (For other cases, see Judgment, 11. j, 4, in

dice," permits a new suit for that purpose. To the same effect, The Seneca (1876) 8 Digest Sup. Ct. 1908. ] Ben. 509, Fed. Cas. No. 12,668; Long v. Appeal – judgment subsequent proThe Tampico (1883) 16 Fed. 491, 494; ceedings below. The Protector (1884) 20 Fed. 207; The

3. To retain jurisdiction of a suit atF. C. Latrobe (1886) 28 Fed. 377, 378; tacking as confiscatory gas rates fixed by The John McCraken, 145 Fed. 705, 706. restitution of excess charges be made to

municipal ordinance, for the purpose that The principle so uniformly held to consumers, according to the terms of the exempt the property of municipal corpo- gas company's supersedeas bond to keep the rations employed for public and govern- injunction in effect, was and is a necessary mental purposes from seizure by admi- part of the duty of the Federal district ralty process in rem applies with even court under the mandates of the Federal greater force to exempt public property Supreme Court, which, having affirmed with of a state, used and employed for pub- modifications, but without prejudice, a delie and governmental purposes.

cree of such district court dismissing the Upon the facts shown, the Queen City execution and proceedings be had in said

gas company's bill, commanded that "such is exempt, and the prohibition should cause as, according to right and justice and be issued.

the laws of the United States, ought to be Rule absolute for a writ of prohibi- had, the said appeal notwithstanding,” and tion.

which, upon dismissing a second appeal for want of final judgment below, inserted the same clause in its mandate. Such jurisdie

tion does not fail because the consumers [512] EX PARTE: IN THE MATTER were not parties to the record.nor in priv.

OF LINCOLN GAS & ELECTRIC LIGHT ity with the parties, and the company COMPANY, Petitioner.

prayed no relief against them, nor is it

limited to overcharges prior to the date of (See S. C. Reporter's ed. 512-519.)

the original decree, the bond itself having

been given subsequent to the decree apAppeal liability under supersedeas pealed from in terms for the benefit, not

bond restitution of excessive only of gas consumers who theretofore liad charges parties and privies.

purchased gas from the company, but of 1. Jurisdiction to grant restitution by those who should purchase thereafter at a gas company to consumers for rates col. any time before the final determination of lected from them in excess of the limit the suit. fixed by an ordinance, pending its suspen

[For other cases, see Appeal and Error, IX. 1,

in Digest Sup. Ct. 1903.) sion by injunction in a suit attacking them as confiscatory, under a bond to se

[No. 29, Original.] cure repayment if the ordinance is upheld, cannot be denied after it has been suis

Decided tained, on the ground that the consumers

Argued March 15 and 16, 1921.

June 1, 1921. were not parties to the record nor in privi. ty with the parties, since the ordinance was for their benefit, and it was recognized by OY PETITION for a Writ of Manda

mus to compel its officers were sued as the public repre-trict ('ourt of the United States for the sentatives of their interests.

District of Nebraska to revoke certain [For other cases, see Appeal and Error. XI. in orders made after the filing of the man

Digest Sup. ('t. 1908. ] Judgment – conclusiveness – rate case date from the Federal Supreme Court, - overcharges after decree.

and to refrain from assuming jurisdic2. A final decree upholding an ordi- tion over the cause. Rule discharged.? nance limiting gas rates, which is attacked The facts are stated in the opinion. as confiscatory, and ordering repayment of overcharges to the consumers, which were 1 Leave granted on June 6. 1921, to precollected pending a suspension of the ordi- sent petition for rehearing herein within nance by injunction, subject to repayment I sixty days.

Mr. Robert A. Brown argued the A court of equity has inherent power cause, and, with Messrs. Maxwell V. to order restitution. Beghtol and Charles A. Frueauff, filed a Bank of United States v. Bank of brief for petitioner:

Washington, 6 Pet. 8, 17, 8 L. ed. 299, The mandate involved in this case 304; Northwestern Fuel Co. v. Brock, conferred no jurisdiction on the district 139 U. S. 216, 35 L. ed. 151, 11 Sup. Ct. court except to affirm its decree of Rep. 523; Arkadelphia Mill. ('o. 1. St. September 23, 1915, dismissing plain- Louis Southwestern R. Co. 249 U. S. tiff's bill after modifying it so as to hold 134, 63 L. ed. 517, P.U.R.1919C, 710, 39 the occupation tax invalid.

Sup. Ct. Rep. 237. Gaines v. Rugg, 118 U. S. 228, 37 L. Procedure by motion in an original ed. 132, 13 Sup. Ct. Rep. 611; Re Winn, case to obtain payment of overcharges is 213 U. S. 458, 53 L. ed. 873, 29 Sup. Ct. proper. Rep. 515; McClellan v. Carland, 217 U. Louisville v. Cumberland Teleph. & S. 268, 51 L, ed. 762, 30 Sup. Ct. Rep. Teleg. Co. 225 U. S. 430, 56 L. ed. 1151, 501; Re Louisville, 231 U. S. 639, 644, 58 32 Sup. Ct. Rep. 741; Re Louisville, 231 L. ed. 413, 415, 34 Sup. Ct. Rep. 255; U. S. 639, 641, 58 L. ed. 413, 415, 34 Sup. Louisville v. Cumberland Teleph. & Ct. Rep. 255. Teleg. Co. 225 U. S. 130, 56 L. ed. 1151, This practice is upheld in cases where 32 Sup. Ct. Rep. 741; St. Louis, I. M. & reversal is had of decrees enjoining S. R. Co. v. Bellamy, 211 Fed. 172, 136 rates. C. C. A. 412, 220 Fed. 876; St. Louis, Allen v. St. Louis, I. M. & S. R. Co. I. M. & S. R. Co. v. McKnight, 244 U. 230 U. S. 553, 57 L. ed. 1625, 33 Sup. S 368, 61 L. ed. 1200, 37 Sup. Ct. Rep. Ct. Rep. 1030; Arkadelphia Mill. ('o. v. 611; Arkadelphia Mill. Co. v. St. Louis St. Louis Southwestern R. Co. supra. Southwestern R. Co. 249 U. S. 134, 63 The decree is conclusive of the period L. ed. 517, P.U.R.1919C, 710, 39 Sup. Ct. down to January 6, 1920. Rep. 237.

Missouri v. Chicago, B. & Q. R. Co. The court had no jurisdiction to enter 241 U. S. 533, 542, 60 L. ed. 1148, 1155, the orders, because no relief was asked 36 Sup. Ct. Rep. 715; Knoxville v. Knoxfor or prayed against any consumer. ville Water Co. 212 U. S. 1, 53 L. ed.

Grignon v. Astor, 2 How. 319, 11 L. 371, 29 Sup. Ct. Rep. 148; Willcox v. ed. 283; St. Louis, I. M. & S. R. Co. v. Consolidated Gas Co. 212 U. S. 19, 53 McKnight, 244 U. S. 368, 375, 61 L. ed. L. ed. 382, 48 L.R.A. (N.S.) 1134, 29 1200, 1205, 37 Sup. Ct. Rep. 611. Sup. Ct. Rep. 192, 15 Ann. Cas. 1034;

The court was without jurisdiction to Northern P. R. Co. v. North Dakota, compel your petitioner to make an ac- 216 U. S. 579, 54 L. ed. 624, 30 Sup. Ct. counting for alleged overcharges subse- Rep. 423; Louisville v. "Cumberland quent to September 23, 1915.

Teleph, & Teleg. Co. 225 U. S. 430, 56 St. Louis, I. M. & S. R. Co. v. Mc. L. ed. 1151, 32 Sup. Ct. Rep. 741; MisKnight, 244 U. S. 368, 374, 61 L. ed ouri Rate Cases (Knott v. Chicago, B. 1200, 1205, 37 Sup. Ct. Rep. 611. & Q. R. Co.) 230 U. S. 474, 57 L. ed.

The court was without jurisdiction to '571, 33 Sup. Ct. Rep. 975; Des Moines enjoin petitioner from settling with con- Tas Co. v. Des Moines, 238 U. S. 153, 59 sumers.

1. ed. 1244, P.U.R.1915D, 577, 35 Sup. St. Louis, I. M. & S. R. Co. v. Mert. Rep. 811; Arkadelphia Mill. Co. v. Knight, 244 U. S. 368, 375, 61 L. ed. St. Louis Southwestern R. Co. 249 L'. S. 1200-1205, 37 Sup. Ct. Rep. 611.

134, 147, 63 L. ed. 517, 525, P.U.R.1919C, The court was without jurisdiction to 710, 39 Sup. Ct. Rep. 237. restrain persons not parties to the litiga- The force and effect of a decree distion from proceeding in other courts. missing a bill and discharging an injunc

Bellamy v. St. Louis, I. M. & S. R. tion are neither suspended nor annulled Co. 136 C. C. A. 442, 220 Fed. 876; St. as a mere consequence of an appeal to Louis, I. M. & S. R. Co. v. McKnight, this court, even if a supersedeas is al244 U. S. 368, 61 L. ed. 1200, 37 Sup. Ct.

lowed. Rep. 611.

Merrimack River Sav. Bank v. Clay T'he filing of a bond, preparatory to Center, 219 U. S. 527, 55 L. ed. 320, 31 appeal from a final order, can neither

Sup. Ct. Rep. 295, Ann. Cas. 1912A, 513. enlarge nor restrict the order itself.

If, in cases where there is a reversal, J. L. Owens Co. v. Officer, 156 C. C.

equity requires, as held by this court in A. 475, 244 Fed. 47.

the Arkadelphia Case (249 '. S. 134, 63 Mr. C. Petrus Peterson argued the L. ed. 517, P.L'.R.1919C, 710, 39 Sup. cause and filed a brief for respondient: Ct. Rep. 237), that the principles of re65 L. ed.

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