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G.R. No.

L-13678 November 12, 1918

THE UNITED STATES, plaintiff-appellee,


vs.
PRUDENCIO SALAVERIA, defendant-appellant.

Jose R. Varela for appellant.


Office of the Solicitor-General Paredes for appellee.

MALCOLM, J.:

The municipal council of Orion, Bataan, enacted, on February 28, 1917, an ordinance which,
among other things, prohibited the playing of panguingue on days not Sundays or legal holidays,
and penalized the violation thereof by a casero [housekeeper] by a fine of not less than P10 nor
more than P200, and by jugadores [gamblers] by a fine of not less than P5 nor more than P200.
The justice of the peace of Orion, when this ordinance went into effect, was Prudencio Salaveria,
now the defendant and appellant. Notwithstanding his official station, on the evening of March
8, 1917, not a Sunday or legal holiday, seven persons including the justice of the peace and his
wife were surprised by the police while indulging in a game of panguingue in the house of the
justice of the peace. The chief of police took possession of the cards, the counters (sigayes), a
tray, an P2.07 in money, used in the game.

These are facts fully proven by the evidence and by the admissions of the accused. Convicted in
the justice of the peace court of Orion, and again in the Court of First Instance of Bataan, Salaveria
appeals to this court, making five assignments of error. The three assignments, of a technical
nature, are without merit, and a fourth, relating to the evidence, is not sustained by the proof.
The remaining assignment of error, questioning the validity of the ordinance under which the
accused was convicted, requires serious consideration and final resolution. This ordinance in part
reads:

RESOLUTION NO. 28

xxx xxx xxx

Whereas, this Council is vested with certain powers by sections 2184 and 2185 of the
Administrative Code;

Whereas, it is the moral duty of this body to safeguard the tranquillity and stability of the
Government and to foster the welfare and prosperity of each an all of the inhabitants of
this municipality; therefore,
Be it resolved to enact, as it hereby is enacted, the following ordinance:

Ordinance No. 3

xxx xxx xxx

Third. — The games known as "Panguingue" "Manilla," "Jung-kiang," "Paris-Paris,"


"Poker," "Tute," "Burro," and "Treinta-y-uno" shall be allowed only on Sundays an official
holidays.

xxx xxx xxx

The following penalties shall be imposed upon those who play the above games on days
other than Sundays and official holidays:

For the owner of the house: A fine of from Ten to Two hundred pesos, or subsidiary
imprisonment in case of insolvency at the rate of one peso a day.

For the gamblers: A fine of from Five to Two hundred pesos each or subsidiary
imprisonment in case of insolvency at the rate of one peso a day.

The Philippine Legislature has granted to municipalities legislative powers of a dual character,
one class mandatory an the other discretionary. Of the first class is the provision of the
Administrative Code which makes it the duty of the municipal council, conformably with law, "to
prohibit and penalize . . . gambling." (Sec. 2188 [i], Adm. Code of 1916; sec. 2242 [i], Adm. Code
of 1917.) This is a more restricted power than that found in the original Municipal Code which
authorized a municipal council to "provide against the evils of gambling, gambling houses, and
disorderly houses of whatsoever sort." (Act No. 82, sec. 39 [u].) The present municipal law, since
making use of the word "gambling," must be construed with reference to the Insular Law, Act
No. 1757, relating to the same subject. Act No. 1757 in section 1 defines "gambling" as "the
paying of any game for money or any representative of value or valuable consideration or thing,
the result of which game depends wholly or chiefly upon chance or hazard, or the use of any
mechanical inventions or contrivance to determine by chance the loser or winner of money or of
any representative of value or of any valuable consideration or thing." In the United
States vs. Hilario ([1913], 24 Phil., 392), the Supreme Court went into the subject of the meaning
of "gambling" in this jurisdiction, and found that it includes those games the result of which
depend wholly or chiefly upon chance or hazard, and excludes those games the result of which
depend wholly or chiefly upon skill, with the result that sections 621 to 625 of the Revise
Ordinances of the city of Manila (734-738 of the Revised Ordinances of 1917) were found to
prohibit only games of chance or hazard.

The ordinance of Orion, Bataan, merely prohibits the playing of panguingue on certain days,
without describing it. Further, although this court has considered the method by which many
other games are played, it has never as yet authoritatively decided whether panguingue was a
game of skill or hazard. Nor was any evidence on this point introduced in the present case.
However, a reading of the decision of the trial court and of official opinions of two Attorneys-
General, of which we can take judicial cognizance, warrants the deduction that panguingue is not
a game of chance or hazard and is not prohibited by Act No. 1757. (See Opinions of the Attorney-
General of July 11, 1904; July 25, 1904; October 10, 1905; and September 7, 1911; also
Berriz, Diccionario de la Administracion, p. 35.) If, therefore, we were to restrict our investigation
to those portions of the Administrative Code which authorize a municipal council to prohibit and
penalize gambling, there would exist grave doubt, to say the least, of the validity of ordinance
No. 3 of the municipality of Orion, Bataan.

There remains for consideration a different approach to the question.

While Philippine law gives to gambling a restricted meaning, it is to be noted that, in its broader
signification, gambling relates to play by certain rules at cards, dice, or other contrivance, so that
one shall be the loser an the other the winner. (20 Cyc., 878; Bouvier's Law Dictionary;
People vs. Todd [1889], 51 Hun [N. Y.], 446 451; 4 N. Y. Supp., 25.) As one example the Charter of
the town of Ruston, State of Louisiana, authorized it "to restrain, prohibit, and suppress . . . games
and gambling houses and rooms . . ., and to provide for the punishment of the persons engaged
in the same." Under this power the town passed an ordinance prohibiting "all games of chance,
lottery, banking games, raffling, and all other species of gambling," indicating that there were
other species of gambling in addition to games of chance. (See Town of Ruston vs. Perkins [1905],
114 La., 851.) The common law notion of gambling, which only made it an indictable offense
when the play was attended by such circumstances as would in themselves amount to a riot or a
nuisance or to an actual breach of the peace, has given way to statutes and ordinances designed
to restrain, suppress, or control gambling.

Authority for the State or a municipality to take action to control gambling in this larger sense
can be found in an analysis of what is called the police power.

Any attempt to define the police power with circumstantial precision would savor of pedantry.
The United States Supreme Court tritely describes it as "the most essential of all powers, at times
the most insistent, an always one of least limitable of the powers of government." (District of
Columbia vs. Brooks [1909], 214 U.S., 138.) The police power is based on the maxim "salus populi
est suprema lex" — the welfare of the people is the first law. The United States Supreme Court
has said that it extends "to the protection of the lives, health and property of the citizens, and to
the preservation of good order and the public morals." (Beer Co. vs. Massachusetts [1878] , 97
U.S., 25; Barbier vs. Connolly [1885], 113 U.S., 27.) The Supreme Court of these Islands has said
that it extends "the police power of the state includes not only the public health safety, but also
the public welfare, protection against impositions, and generally the public's best interest."
(U.S. vs. Pompeya [1915], 31 Phil., 245.) Recent judicial decisions incline to give a more extensive
scope to the police power that the older cases. The public welfare is rightfully made the basis of
construction.
Not only does the State effectuate its purposes through the exercise of the police power but the
municipality does also. Like the State, the police power of a municipal corporation extends to all
matters affecting the peace, order, health, morals, convenience, comfort, and safety of its
citizens — the security of social order — the best and highest interests of the municipality.
(Case vs. Board of Health of Manila and Heiser [1913], 24 Phil., 250.) The best considered
decisions have tended to broaden the scope of action of the municipality in dealing with police
offenses. Within the general police powers of a municipal corporation is the suppression of
gambling. Ordinances aimed in a reasonable way at the accomplishment of this purpose are
undoubtedly valid. (See U.S. vs. Pacis [1915], 31 Phil., 524; 39 L. R. A., 523, Note; Cooley's
Constitutional Limitations, 6th edition, pp. 138, 226, 742; Greenville vs. Kemmis [1900], 58 S. C.,
427 [holding that under the general welfare clause a city may pass an ordinance prohibiting
gambling in any private house].)

The Philippine Legislature, as before intimated, delegated to municipalities certain legislative


powers are named specifically. But in addition, and preceding both the specific powers of a
mandatory and discretionary character, is the general power of a municipal council to enact
ordinances and make regulations. It is this grant that the preamble of the ordinance of Orion
assigns as authority for its enactment. Said section 2184 of the Administrative Code of 1916 (sec.
2238, Adm. Code of 1917) reads:

The municipal council shall enact such ordinances and make such regulations, not
repugnant to law, as may be necessary to carry into effect and discharge the powers an
duties conferred upon it by law an such as shall seem necessary and proper to provide for
the health and safety, promote the prosperity, improve the morals, peace, good order,
comfort, and convenience of the municipality and the inhabitants thereof, and for the
protection of property therein.

This section, known as the general welfare clause, delegates in statutory form the police power
to a municipality. As above stated, this clause has been given wide application by municipal
authorities and has in its relation to the particular circumstances of the case been liberally
construed by the courts. Such, it is well to recall, is the progressive view of Philippine
jurisprudence.

The general welfare clause has two branches. One branch attaches itself to the main trunk of
municipal authority, and relates to such ordinances and regulations as may be necessary to carry
into effect and discharge the powers and duties conferred upon the municipal council by law.
With this class we are not here directly concerned. The second branch of the clause is much more
independent of the specific functions of the council which are enumerated by law. It authorizes
such ordinances "as shall seem necessary and proper to provide for the health and safety,
promote the prosperity, improve the morals, peace, good order, comfort, and convenience of
the municipality and the inhabitants thereof, and for the protection of property therein."

It is a general rule that ordinances passed by virtue of the implied power found in the general
powers and purposes of the corporation, and not inconsistent with the laws or policy of the State.
The ordinance of the municipality of Orion does not seem in itself to be pernicious, or
unreasonable or discriminatory. Its purposes evidently are to improve the morals and stimulate
the industry of the people. A person is to be compelled to refrain from private acts injurious both
to himself an his neighbors. These objects, to be attained by limiting the pastime to definite days,
do not infringe any law of the general government.

The constitutional provision that no person shall be deprived of liberty without due process of
law is not violated by this ordinance. Liberty of action by the individual is not unduly
circumscribed; that is, it is not unduly circumscribed if we have in mind the correct notion of this
"the greatest of all rights." That gravest of sociological questions — How far, consistently with
freedom, may the liberties of the individual member of society be subordinated to the will of the
Government? — has been debated for centuries, in vain, if we can not now discount the time
worn objection to any and all interference with private rights in order to effectuate the public
purpose. (See Jacobson vs. Massachusetts [1905], 197 U. S., 11; State vs. Kreutzberg [1902], 58
L. R. A., 748.) Almost countless are the governmental restrictions on the citizen.

The presumption is all favor of validity. The inhabitants of a municipality are in themselves
miniature states. The action of the elected representatives of the people cannot be lightly set
aside. The councilors must, in the very nature of things, be familiar with the necessities of their
particular municipality an with all the facts and circumstances which surround the subject, and
necessities of their particular municipality and with all the facts and circumstances which
surround the subject, and necessitate action. The local legislative body, by enacting the
ordinance, has in effect given notice that the regulations are essential to the well being of the
people. Who is in a better position to say whether the playing of panguingue is deleterious to
social order and the public interest in a certain municipality — the municipal council, or the
courts? The answer is self-evident. The Judiciary should not lightly set aside legislative action
when there is not a clear invasion of personal or property rights under the guise of police
regulation. (See U.S. vs. Joson [1913], 26 Phil., 1.)

President McKinley's Instructions to the Commission still remain undisturbed by subsequent Acts
of Congress dealing with Philippine affairs and yet constitute a portion of our constitutional law,
as to the inviolable rule that "municipal governments . . . shall be afforded the opportunity to
manage their own affairs to the fullest extent of which they are capable." Again the same organic
law says, "In the distribution of powers among the governments organized by the Commission,
the presumption is always to be in favor of the smaller subdivision, so that all the powers which
can properly be exercised by the municipal government shall be vested in that government . . . ."
Let us never forget these principles so highly protective of local self-government.

The judiciary can very well take notice of the fact that municipalities are accustomed to enacting
ordinances aimed at the regulation of gambling. The executive authorities an the Attorney-
General have usually upheld the validity of such ordinances, especially those intended to restrict
the playing of panguingue. (Opinions of the Attorney-General, supra; Opinion of the Executive
Secretary, July 6, 1909; Indorsement of the Governor-General, July 21, 1904.) This general
municipal practice, indicative of a social cancer to be eradicated, should not be discouraged by
strict judicial construction.

More important still, the courts cannot but realize that gambling, in its larger sense as well as in
its restricted sense, is an act beyond the pale of good morals, which, for the welfare of the Filipino
people, should be exterminated. The suppression of the evil does not interfere with any of the
inherent rights of citizenship. The pernicious practice is rightfully regarded as the offspring of
idleness and the prolific parent of vice and immorality, demoralizing in its association and
tendencies, detrimental to the best interests of society, and encouraging wastefulness,
thriftlessness, and a belief that a livelihood may be earned by other means than honest industry.
To be condemned in itself, it has the further effect of causing poverty, dishonesty, fraud, and
deceit. Many a man has neglected his business and mortgaged his integrity to follow the fickle
Goddess of the cards. Many a woman has wasted her hours and squandered her substance at
the gambling board while home and children were forgotten. It is highly proper that this pastime
should be subject to the control of restraints imposed by the ordinances of local governments
peculiarly afflicted by the evil. (See In re Voss [1903], 11 N. D., 540; Ex parte Tuttle [1891], 91,
Cal., 589; Greenwood vs. State [1873], 6 Baxt., 567; 32 Am. Rep., 539; 12 R. C. L., 709-715.)

For the suppression of such an evil, coordinate and harmonious action must concur between the
three departments of Government. A law or ordinance enacted by the legislative body must exist.
Such an ordinance is before us. Vigorous executive enforcement must take place to make the law
or ordinance a reality. Such activity by the police has brought this case to the courts. And finally
the Judiciary, having full respect for the legislative action of the municipal council and for the
prosecution by the executive officials, must, by judicial construction, equally as progressive and
constructive, give effect to the action of the other two powers. Wherefore,
although panguingue is not entirely a game of chance, since it is a proper subject for regulation
by municipal authorities acting under their delegated police power, who’s laudable intention is
to improve the public morals and promote the prosperity of their people, their action should be
upheld by the courts. Ordinance No. 3 of Orion, Bataan, is found to be valid.

The culprit in this case is himself a member of the Judiciary. Instead of enforcing the law, he has
scorned it. His example to the people of Orion has been pernicious in its influence. If gambling is
to be suppressed, not only the weak and ignorant must be punished, but those with full
knowledge of the law and the consequences of violation. We would accordingly suggest to Courts
of First Instance that in all cases arising under the Gambling Law or ordinances, except for unusual
circumstances, a prison sentence should be imposed, if permitted by the law or ordinance. We
further suggest that, where the defendant has been found guilty and is a man of station, he be
given the maximum penalty.lawphil.net

Applying the foregoing in this instance, it results that the defendant and appellant must be found
guilty of a violation of ordinance No. 3 of the municipality of Orion, Bataan; and, in accordance
therewith, shall be sentenced to the maximum penalty of the payment of a fine of P200, or to
subsidiary imprisonment in case of insolvency, with the costs of all three instances against him.
So ordered.
Arellano, C.J., Torres, Araullo and Avanceña, JJ., concur.

Separate Opinions

JOHNSON, J., concurring:

I concur upon the ground that the ordinance in question is fully authorized under the "general
welfare" provisions of the Municipal Code.

STREET, J., concurring:

I agree in the conclusion that the ordinance passed by the municipality of Orion prohibiting the
playing of panguingue on secular days is valid and am of the opinion that the authority to pass
such an ordinance is to be found exclusively in section 2184 of the Administrative Code (1916),
which gives a general authority for the enactment of ordinances which seem proper to improve
the morals and good order of the community. As the game of panguingue is admittedly not a
game of chance or hazard played for money, it is not within the prohibitions of Act No. 1757; an
I think the case should be determined without reference to the legislation against gambling and
without reference t the circumstance that under subsection (i) of section 2188 of the same Code
the Legislature has made it mandatory upon municipal councils to prohibit and penalize
gambling.

The legislature has clearly authorized the municipal council to use its discretion as to the
measures which it esteems desirable to promote morals an good order; and I know of no rule of
law which would justify any court in overruling that discretion in such a matter as is now before
us. Certainly I would be sorry to see this court adopt a paternalistic attitude of captious criticism
and correction tending to embarrass the free exercise of the legislative discretion vested by law
in the municipal councils. Those bodies are undoubtedly destined to make mistakes in the
exercise of the powers conferred on them, but there is no better school than that of experience
in which their members may discover what is most likely to promote the welfare of the
community and the interests of their constituents.

As already suggested, I think that the Gambling Law (Act No. 1757) and the provisions of the
Municipal Code relative to the suppression of gambling, strictly speaking, have nothing to do with
the case; and the circumstance that those measures are upon the statute book cannot serve in
the slightest degree to limit the powers of a municipal council in legislating upon a matter not
implicated with gambling. From the preamble to the ordinance it may be seen that the council
had in view the promotion of the general well-being and the advancement of prosperity in the
community; and the ordinance was doubtless intended to discourage the playing of games which
involve a frivolous and idle waste of time, rather than directly to suppress gambling. But even if
the council had suppose that the games which it proposed to regulate are calculated to foment
the gambling instinct and should be suppressed for that reason, the ordinance in question could
not possibly have been rendered invalid by that fact.

FISHER, J., dissenting:

The importance of suppressing gambling, properly emphasized in the majority opinion, cannot
warrant a conviction where gambling is not involved. The zeal to remedy an evil should not induce
the graver evil of obliterating legal landmarks.

Gambling is the playing, for money or its equivalent, of any game of which the result depends
"wholly or chiefly upon chance or hazard, . . . ." (Act No. 1757).

The defendant herein is accused of playing panguingue, which is avowedly not a game of chance
or hazard within this definition. It is not alleged in the information that the playing was for money
or any other thing of value. The fact that some money was found on the table when the accused
was arrested is immaterial in this case. The ordinance under which the conviction was had does
not make playing the prohibited games for money an ingredient of the offense, and the decision
of the majority proceeds upon the theory that the result would have been the same had no
money been staked upon the game.

To play a game of skill without risking anything upon the outcome is not gambling, and the
prohibition of harmless amusements cannot be justified by the authority to prohibit gambling.

In recognition of the fact that the ordinance upon which is based this prosecution goes beyond
the terms of the statutory authority, it is sought to find power to pass the same under the general
welfare clause (section 2238, Administrative Code of 1917). But the ordinance which imposes a
fine and imprisonment upon a man and wife who play a game of cards together as mere pastime,
in their own home, without risking a cent upon the outcome, is beyond the protection of such
general provision for two reasons. In the first place, it is unreasonably subversive of the liberty of
the citizen an unnecessary. In the second place, the Legislature of the Islands has spoken in well
defined terms on the subject of gambling, and its pronouncement on the subject fills the field
and precludes the possibility of stretching the authority delegated to municipalities into the right
to repeal, modify, or supplement existing legislation.

The subject of gambling has merited the attention of our Legislature and Act No. 1757 very clearly
defines the intention and will of that body in the premises. Its limitation of the prohibition is its
refusal to prohibit games of skill and games in which no value is at stake, and is the exact
equivalent of a pronouncement that non-gambling pastimes shall not be prohibited.
When the legislature authorized municipalities to "penalize . . . . gambling" it was aiming at the
vice of risking money upon the hazard of a game of chance. The Legislature has not prohibited
the playing of card games — in itself an innocent pastime — but the playing for money of games
of hazard. When it delegated like power to municipalities it had a like object in view and not
other.

Equally untenable, to my mind, is the attempt to justify the statute under the "general welfare"
clause. The prohibition by ordinance of the playing of certain card games as an amusement,
without stake or wager, cannot be said to promote the health, safety, morals, peace, good order,
comfort or convenience of the inhabitants of a municipality. The majority opinion contends that
the purpose of the enactment was to "improve the morals and stimulate the industry of the
people." Unfortunately for that theory it appears that the ordinance expressly permits these
"immoral" diversions on Sundays and official holidays. I am unable to see how one's morals are
to be improved by permitting him to play panguingue, poker or burro all day Sunday, and then
sending him to jail for engaging in the same amusement Monday evening. So far as the
"stimulation of . . . industry" is concerned, that argument might have had some weight if the
prohibition of these amusements had been limited to working hours. But such is not the case.
The inhabitants of Orion may play poker — without a wager — to their heart's content on Sunday,
but to do it Saturday evening, after the work of the week is over, is prohibited — their morals are
to be "improved" and their industry "stimulated" until midnight. After that they may yield to their
depraved instincts until midnight of Sunday, without let or hindrance. I submit that it is obvious
that the ordinance in question was intended to prevent gambling, but is not warranted by the
delegated authority of municipal councils over this subject, because it is so drawn as to include
harmless amusements not within the legislative definition of gambling. By limiting the definition
and prohibition of gambling to the playing for money of games of hazard, the Legislature by
implication permitted the playing of all other games not within the prohibition. Is the "general
welfare" clause of grant of power to municipal corporation to be so construed as to make the
express delegation of power redundant and useless? If under the general welfare clause the
playing of whist or chess in one's own house, not for money, but merely for amusement, may be
prohibited under the general welfare clause, certainly the power "to penalize and prohibit . . .
gambling" must have been included in that clause. If so, the special grant relating to gambling is
merely redundant.

I submit that when a special power to enact ordinances is granted to a municipal council upon a
particular subject, the power as to that matter is to be measured by the express grant, without
enlargement by the interpretation of the general "welfare clause." The express grant of power
to regulate public dance halls (section 2243 [k], Administrative Code of 1917) is not be expanded
under the general "welfare clause" so as to authorize the prohibition and penalizing of dancing
in private houses. The express grant of power to establish and maintain streets cannot be
expanded, under the general welfare clause, this court has held, so as to authorize an ordinance
to compel citizen to clean the streets. (U.S. vs. Gaspay, 33 Phil. Rep., 96.)

I think the law on this subject is correctly expressed in Judge Dillon's authoritative work on
Municipal Corporations as follows:
When there are both special and general provisions, the power to pass by-laws under the
special or express grant can only be exercised in the cases and to the extent, as respects
those matters, allowed by the charter or incorporating act; and the power to pass by-laws
under the general clause does not enlarge or annul the power conferred by the special
provisions in relation to their various subject matters, but gives authority to pass by-laws,
reasonable in their character, upon all other matters within the scope of their municipal
authority, and not repugnant to the Constitution and general laws of the State.

But if we disregard entirely the delegated power relating to the prohibition of gambling and
consider the matter from the standpoint of the general welfare clause alone, it seems equally
clear to me that the ordinance in question is void as being contrary to the public legislative policy,
as established by the Philippine Legislature. In Dillon on Municipal Corporations (fifth edition,
paragraph 601) it is said:

. . . A municipal corporation . . . cannot, in virtue of its incidental power to pass-by-laws,


or under any general grant of that authority, adopt by-laws which infringe the spirit or are
repugnant to the policy of the State as declared in its general legislation. This principle is
well exemplified by a case in Ohio (Marietta vs. Fearing, 4 Ohio, 427) in which
incorporated towns were, by statute, prohibited from subjecting stray animals owned by
persons not residents of such town to their corporation ordinances. It was held that an
ordinance operating, not on the animals but on the non-resident owner, in the shape of
a penalty, violated the spirit of the statute, and was void. So, in a later case in the same
State, it was shown that the general policy of the State was to allow animals to run at
large; and it was ruled that a municipal corporation with power to pass "all by-laws
deemed necessary for the well-regulation, health, cleanliness & c.," of the borough, and
with power to "abate nuisances," had no authority to pass a by-law restraining cattle from
running at large, such a by-law being in contravention of the general law of the State.
(Collins vs. Hatch, 18 Ohio, 523.)

The public legislative policy is to permit the playing of card games as an amusement, without
wagers upon the outcome. That is shown by the language of Act No. 1757, which, by limiting the
prohibition of gambling to games of chance or hazard played for money, by implication permits
the playing of games not prohibited, and by the fact that the Tariff Act in force (section 3) by
prohibiting the importation of marked cards impliedly authorizes the importation of others.

Panguingue playing may be so harmful to the people of this country that the playing of it at any
time, at any place, with or without the wagering of money, should be prohibited. If that is so the
Legislature should prohibit it. Some people regard dancing and billiards as equally harmful. If such
people happen to control a given municipal council we may see respectable citizens in jail for the
offense of dancing in their own homes, for playing casino or billiards, or ping-pong, or for
engaging in any other amusement which, while not prohibited by any general law, may be
prohibited in any municipality under this omnibus general welfare clause.

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