                       IN THE SUPREME COURT OF MISSISSIPPI

                                   NO. 2003-CT-01062-SCT

HAROLD GREEN, ET AL., AND CITY OF
RICHLAND, MISSISSIPPI

v.

CLEARY WATER, SEWER & FIRE DISTRICT

                                ON WRITS OF CERTIORARI

DATE OF JUDGMENT:                           4/17/2003
TRIAL JUDGE:                                HON. JASON H. FLOYD, JR.
COURT FROM WHICH APPEALED:                  RANKIN COUNTY CHANCERY COURT
ATTORNEYS FOR APPELLANTS:                   DAVID RINGER
                                            PAUL B. HENDERSON
                                            JAY MAX KILPATRICK
ATTORNEY FOR APPELLEE:                      JAMES A. BOBO
NATURE OF THE CASE:                         CIVIL - OTHER
DISPOSITION:                                REVERSED AND REMANDED - 6/23/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       GRAVES, JUSTICE, FOR THE COURT:

¶1.    This case concerns actions taken by the Cleary Water, Sewer & Fire District (“Cleary”

or “Cleary District”) in adopting and implementing its “Decentralized Wastewater Use

Ordinance” (“Ordinance”) which regulates the disposal of wastewater by residents who are not

connected to Cleary’s sewer system.     Numerous residents of the Cleary District brought suit

seeking a declaration that the ordinance was invalid and an injunction prohibiting enforcement

of that ordinance.   The City of Richland intervened as a party plaintiff in this matter.   The

special chancellor appointed to hear this matter granted Cleary summary judgment.      Plaintiffs
appealed and charged that the trial court erred on five grounds: (1) that Cleary had no statutory

authority or jurisdiction to enact the challenged ordinance; (2) that the ordinance enacted by

Cleary was preempted by Mississippi Individual On-Site Wastewater Disposal System law,

Miss. Code Ann. §§ 41-67-1 et seq.; (3) that the ordinance unconstitutionally takes property

without compensation under both the United States Constitution and Mississippi Constitution;

(4) that the chancellor erred in considering affidavits not received by counsel opposite until

minutes prior to the hearing in which they were introduced; and (5) that the chancellor erred

in relying on affidavits of employees of state agencies, who purported to speak on behalf of

the State, as being conclusive of the fact that the ordinance did not conflict with Health

Department regulations.1        A divided Court of Appeals affirmed the chancellor’s decision.

Green v. Cleary Water, Sewer & Fire Dist., 2004 WL 1729482 (Miss. Ct. App. 2004). We

granted certiorari.

                               FACTS AND PROCEDURAL HISTORY

¶2.     The Cleary Water, Sewer and Fire District was created under the authority of Miss.

Code Ann. §§ 19-5-151 through - 207, which governs water, sewer, garbage disposal, and fire

protection districts.     Cleary obtained a certificate of convenience and necessity from the

Public Service Commission authorizing it to construct, operate, and maintain a sewer system

in a specified area within Rankin County.         In 2000, Cleary obtained a supplemental certificate

from the Public Service Commission which enlarged the area in which it was authorized to

provide its services.        Cleary sought to address a perceived problem of untreated or

undertreated sewage being discharged onto the ground within the Cleary District by adopting


        1
            Richland only raises the first two issues stated above as assignments of error.

                                                      2
the “Decentralized Wastewater Use Ordinance” which plaintiffs Harold Green, et al. and the

City of Richland challenge here.      Cleary maintains that it adopted the ordinance only after

submitting it to the Mississippi State Department of Health (MDH) and the Mississippi

Department of Environmental Quality (MDEQ) for comment and review.

¶3.    Cleary published a Notice of Public Hearing concerning the possible adoption of the

ordinance and then held a public hearing; no one at the hearing expressed opposition to the

ordinance’s adoption and Cleary adopted the ordinance at its June 14, 2001, meeting. Cleary

sent a notice dated September 14, 2001, to all customers who received their supply of potable

water from the Cleary District, informing them of the newly adopted ordinance and the steps

that must be taken to comply with the ordinance.

¶4.    The letter specifically informed water customers of the following: (1) Property owners

with a properly working septic system would not be required to install a new system; (2) Each

property owner must have his/her system inspected within one year of June 21, 2001, the date

the letter was sent out, and have the results sent to Cleary’s office; (3)   Each year following

the ordinance’s institution, each property owner would be required to present proof that his/her

system was working properly; (4) Property owners who could not show that their systems

complied with the ordinance would be required to install an approved system and then become

a sewer customer; (5) Cleary would accept ownership of the new disposal system and, in

exchange, would maintain the unit for its usable life, bearing all routine maintenance costs; (6)

Once becoming a sewer customer, property owners would be assessed a monthly service

charge that would be added to their water bill; and (7) Present water customers were given the




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option of transferring ownership of their existing systems to Cleary, subject to certain

qualifications.

¶5.       Harold Green and 122 other residents of Rankin County filed suit against Cleary in

Rankin County Chancery Court on August 23, 2002, seeking both declaratory and injunctive

relief.       They charged that Cleary was without authority to enact the subject ordinance and

wanted a declaration that the ordinance was void.          They also sought to enjoin Cleary from

enforcing the ordinance against plaintiffs who refused to comply with its terms.               The City of

Richland sought to intervene and its motion was granted on September 3, 2002.2                  Chancellors

John S. Grant, III and Thomas L. Zebert issued an order of recusal, and this Court appointed

Jason H. Floyd, Jr. as a special chancellor for this case on August 27, 2002. Cleary removed

to federal court, invoking the court’s federal question jurisdiction, but the federal court

remanded the case to chancery court on January 13, 2003.

¶6.       Cleary filed a motion to dismiss/motion for summary judgment on January 27, 2003.

Plaintiffs filed their response and own motion for summary judgment on February 11, 2003.

The chancellor held a hearing on the parties’ various motions and granted Cleary’s motion for

summary judgment without a written opinion on April 17, 2003.            Plaintiffs timely appealed the

chancellor’s decision.      The Mississippi Court of Appeals found that Cleary had statutory

authority to enact the challenged ordinance and affirmed the chancellor’s ruling in an opinion




          2
          In the order granting Richland’s motion to intervene, the chancellor also issued a
preliminary injunction against Cleary’s enforcement of the challenged ordinance.

                                                    4
dated August 3, 2004.          This Court granted plaintiffs’ petition for certiorari on January 27,

2005.3

                                              DISCUSSION

¶7.      This Court reviews a trial court’s grant of summary judgment de novo, viewing the

evidence in a light most favorable to the non-moving party. Gale v. Thomas, 759 So. 2d 1150,

1152 (Miss. 1999). A grant of summary judgment will be reversed if any triable issues of fact

exist. Id. at 1152.

¶8.      The numerous issues raised by plaintiffs can be distilled down to two: (1) whether

Cleary had the authority to enact its ordinance, and (2) whether summary judgment was

properly granted.

         I.        Whether the Cleary District possessed the authority to enact its
                   “Decentralized Wastewater Use Ordinance.”

¶9.      At the heart of this appeal is whether Cleary had the authority to enact the ordinance

being challenged by plaintiffs. Cleary argues that it is granted such authority under Miss. Code

Ann. § 19-5-173 4 and § 19-5-175.5            Plaintiffs recognize Cleary’s authority to build, maintain,


         3
              892 So. 2d 824 (Miss. 2005) (table).
         4
              Miss. Code Ann. § 19-5-173 (Rev. 2003) states:

         The board of commissioners shall have the power to make regulations to secure
         the general health of those residing in the district; to prevent, remove and abate
         nuisances; to regulate or prohibit the construction of privy-vaults and cesspools,
         and to regulate or suppress those already constructed; and to compel and
         regulate the connection of all property with sewers.
         5
          Miss. Code Ann. § 19-5-175 (Rev. 2003) states general powers granted to water,
sewer, garbage disposal and fire protection districts. It states in part:

         [a]ny district created pursuant to the provision of Sections 19-5-151 through

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and regulate a “sewer system” within the Cleary District but argue that Cleary is without

authority to enact its “Decentralized Wastewater Use Ordinance” because the Legislature

granted the Mississippi State Board of Health sole authority to regulate septic tanks under the

Mississippi Individual On-Site Wastewater Disposal System Law, Miss. Code Ann. §§ 41-67-1

et seq.

¶10.      Plaintiffs argue that a water or sewer district, being a statutory creation, may only

exercise those powers expressly granted or necessarily implied by the Legislature and that

such powers “must be found within the four corners of the statute under which the agency

operates.”     Strong v. Bostick, 420 So. 2d 1356, 1361 (Miss. 1982) (citing Miss. Milk

Comm’n v. Winn-Dixie La., Inc., 235 So. 2d 684 (Miss. 1970)).               Because the statutes

governing districts such as Cleary do not mention individual septic systems and the Legislature

specifically granted the Department of Health           authority to regulate individual on-site

wastewater disposal systems (IOWDS) under Miss. Code Ann. §§ 41-67-1 et seq., plaintiffs

allege that Cleary is without authority to regulate individual septic systems to control water

quality within the district it governs.

¶11.      Whether Cleary had the authority to enact the subject ordinance is dependent on how

this Court construes competing statutes.       In affirming the trial court’s grant of summary




          19-5- 207 shall be vested with all the powers necessary and requisite for the
          accomplishment of the purpose for which such district is created.            No
          enumeration of powers herein shall be construed to impair or limit any general
          grant of power herein contained nor to limit any such grant to a power or powers
          of the same class or classes as those enumerated. Such districts are empowered
          to do all acts necessary, proper or convenient in the exercise of the powers
          granted under such sections.

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judgment, the Court of Appeals found that Cleary had the authority to enact its ordinance under

“general police powers” granted to water and/or sewer districts in Miss. Code Ann. § 19-5-173

(Rev. 2003). Green, 2004 WL 1729482, at *4. The Court of Appeals also found that the

Mississippi On-Site Wastewater Disposal System Law did not “expressly prevent” Cleary from

“regulating the use or maintenance of individual on-site wastewater disposal systems,” despite

the fact that sewer districts were not mentioned in this statutory scheme.   Green, 2004 WL

1729482, at *4. The Court of Appeals further stated that enactment of Miss. Code Ann. §§ 41-

67-1 et seq., did not operate to repeal Miss. Code Ann. § 19-5-173, which gave Cleary the

authority to “protect the potable water that it supplies to its customers through regulations

protecting the health of these customers.” Green, 2004 WL 1729482, at *4.

¶12.    Plaintiffs, however, point out that the State Board of Health is given authority “[t]o

exercise general supervision over the design, construction, operation, and maintenance of

individual on-site wastewater disposal systems . . .” and “[t]o adopt, modify, repeal and

promulgate rules and regulations” regarding such systems under Miss. Code Ann. § 41-67-

3(1).   They argue that this grant to the Department of Health is exclusive and that the

Legislature, in adopting the Mississippi Individual On-Site Wastewater Disposal System Law,

preempted other agencies or political bodies from regulating these types of disposal systems.

While this provision gives the Mississippi State Board of Health a general grant of power, this

Court has not found any language giving the Board “exclusive” authority in this area, as

plaintiffs contend. In fact, § 41-67-3(1)(a) says that the State Department of Health and the

Department of Environmental Quality “shall enter into a memorandum of understanding, which

at a minimum shall clearly define the jurisdiction of each department with regard to wastewater

                                               7
disposal and procedures for interdepartmental interaction and cooperation.”             Moreover, § 41-

67-3(2)     allows professional engineers to provide “design,            construction or installation”

services for individual disposal systems and actually exempts such engineers from the

certification requirements of § 41-67-3(1)(c).          This language does not indicate the exclusive

vesting of power in the Department of Health as plaintiffs allege.

¶13.      Plaintiffs do recognize an exception to the health department’s exclusive authority to

regulate individual waste disposal systems in Miss. Code Ann. § 41-67-15, which states:

          [n]othing in this chapter shall limit the authority of a municipality or board of
          supervisors to adopt similar ordinances which may be, in whole or in part, more
          restrictive than this chapter, and in those cases the more restrictive ordinances
          will govern.

Since the Legislature did not include sewer districts within this provision, plaintiffs argue that

those districts are without power to enact ordinances that concern individual septic systems.

They claim that the language here is unambiguous, making statutory interpretation unnecessary

and improper. See Marx v. Broom, 632 So. 2d 1315, 1318 (Miss. 1994) (stating that “courts

cannot restrict or enlarge the meaning of an unambiguous statute”).           Plaintiffs seek to bolster

this position by noting that water and/or sewer districts such as Cleary were specifically

mentioned in another provision of the           Mississippi Individual On-Site Wastewater Disposal

System Law. This provision regarding temporary disposal systems states:

          The board may approve the installation of sewage holding tanks in districts
          created under Sections 19-5-151 through 19-5-207 for the purpose of
          providing sewage services. The district shall be required to maintain or
          provide for the maintenance of those holding tanks. The board shall require
          that residences be connected to a municipal or community sewage system
          when that system is available and ready to use.

Miss. Code Ann. § 41-67-11(2).


                                                    8
¶14.   Water and/or sewer districts were given the authority to maintain “sewage holding

tanks” with the Board of Health’s approval under § 41-67-11(2), yet omitted from § 41-67-15,

which gave municipalities and boards of supervisors authority to enact ordinances that were

more restrictive than those enacted by the Board of Health. Despite this omission,       in the

statutory scheme of Miss. Code Ann. §§ 41-67-1 et seq. does not prohibit water and/or sewer

districts from regulating individual on-site wastewater systems.   Though § 41-67-15 makes no

mention of utility districts, it does not forbid Cleary from adopting the subject ordinance,

which the Court of Appeals correctly noted.

¶15.   In addition to the authority granted to water and/or sewer districts under §19-5-173,

Miss. Code Ann.      §19-5-175 grants Cleary “all the powers necessary and requisite for the

accomplishment of the purpose for which such district is created” and states that none of

Cleary’s enumerated powers “shall be construed to impair or limit any general grant of power.”

Districts such as Cleary are authorized “to do all acts necessary, proper or convenient” in

exercising the powers granted to them. Id.

¶16.   The Court of Appeals correctly held that Cleary has authority under its general police

power to insure the purity of the water it supplies to its customers.      However, that police

power is not unlimited. The Board of Health is granted a general power to regulate individual

wastewater disposal systems under the Mississippi Individual On-Site Wastewater Disposal

System Law which is not expressly granted to districts such as Cleary. As such, any ordinance

Cleary enacts, which attempts to regulate individual wastewater disposal systems, must comply

with the rules and regulations adopted by the Board of Health. This principle is denoted in City

of Jackson v. Mississippi State Bldg. Comm’n, 350 So. 2d 63, 66 (Miss. 1977), in which this


                                                9
Court stated that “express authority to a state agency to do a particular thing in a particular way

supersedes any local or general regulation conflicting therewith.”

¶17.    The fact that the Board of Health has this general power does not necessarily mean that

Cleary is without power to regulate in this area also.        Both of the statutory schemes at issue

here, Miss. Code Ann. §§ 19-5-151 et seq. and Miss. Code Ann. §§ 41-67-1 et seq., regulate

health-related matters.   As such, they can be considered in pari materia, and any ambiguities

in one provision should be resolved “by applying the statute consistently with other statutes

dealing with the same or similar subject matter.” State ex rel. Hood v. Madison County, 873

So. 2d 85, 90 (Miss. 2004).          Stated similarly, “statutes on the same subject, although in

apparent conflict, should, if possible, be construed in harmony with each other to give effect

to each.” Boyles v. Miss. State Oil & Gas Bd., 794 So. 2d 149, 160 (Miss. 2001).            With this

rule of construction in mind, we find that Cleary does have authority to adopt rules similar to

those in its “Decentralized Wastewater Use Ordinance,” but the rules and regulations adopted

by the Department of Health must take precedence               over any conflicting provisions in the

Cleary Ordinance.

¶18.    This Court finds that the Cleary District did have authority under Miss. Code Ann. §§

19-5-173 & -175 to enact an ordinance which would protect its water supply and that such

action was not preempted by the Mississippi Individual On-Site Wastewater Disposal System

Law. However, any provision of such ordinance that conflicts with rules or regulations adopted

by State Board of Health, pursuant to its powers under Miss. Code Ann. §§ 41-67-1 et seq.,

should be declared void and given no effect.




                                                   10
        II.     Whether the trial court erred in granting Cleary’s motion for summary
                judgment.

        A.      The Affidavits

¶19.    The plaintiffs   argue that the trial court erred in granting Cleary summary judgment.

They allege that the trial court improperly: (1) considered affidavits which were not delivered

to opposite counsel until the day of the hearing, and (2) relied on the affidavits of state agency

employees as being conclusive of the Department of Health’s position that the Cleary

Ordinance did not conflict with its rules and regulations.          The only facts the trial court had

before it at the hearing on summary judgment were contained in the affidavits of Kenn Munn,

Michael Slaughter, and Ralph J. Turnbo, Jr. Despite this bare record, Cleary claims that the

chancellor properly considered the evidence before him and                that his decision should be

affirmed.

¶20.    Turnbo’s affidavit was filed with the Rankin County Chancery Clerk’s office on April

2, 2003, and served via first class mail in compliance with M.R.C.P. 56(c). Yet, according to

plaintiffs, neither their counsel nor the chancellor received this affidavit prior to the hearing.

The chancellor was within his discretion in considering this affidavit in conjunction with the

other affidavits and pleadings in ruling on the parties’ motions. However, plaintiffs,         charge

that the chancellor’s reliance on affidavits was erroneous in other regards.

¶21.    Plaintiffs claim it was improper for the trial court to rely on the affidavits of Kenn

Munn, Michael Slaughter, and Ralph Turnbo because none of them have the authority to speak

on behalf of the Department of Health. They point to the case of Mississippi Dep’t of Envtl.




                                                    11
Quality v. Weems, 653 So. 2d 266 (Miss. 1995), for the proposition that a governmental

agency may only act through its official policies, rather than its employees.

In Weems, the executive director of the Department of Environmental Quality attempted to

provide guidance as to how the MDEQ interpreted permit transfers between certain entitites.

The chancellor, however, did not believe that the director had authority to bind the MDEQ,

found that the MDEQ had not adopted rules and regulations to interpret the term “transfer,” and

stated that an agency such as the MDEQ “does not speak, nor set policy, through the letters of

its Executive Director. It can only speak through its own official action.” Weems, 653 So.2d

at 273.      Weems       affirmed the chancellor’s finding that the Commission of Environmental

Quality’s actions conflicted with the moratorium statute on permit transfers                    and   the

chancellor’s decision to remand the action to the appropriate administrative agencies to adopt

rules and regulations necessary for the proper adjudication of the case. Id. at 273, 282-83.

¶22.    Cleary has defended the charges brought by plaintiffs by not only stating that it has the

authority to enact its ordinance but that such ordinance was adopted with approval of both the

MDEQ and the Department of Health.             These contentions are supported by various affidavits

which the trial court stated it considered in rendering its judgment. Kenn Munn, who served

as manager of the Cleary Water, Sewer and Fire District and was also the secretary on its

Board of Commissioners, stated that the Department of Health recommended that Cleary adopt

its ordinance, that he worked closely with both the Department of Health and the MDEQ in

drafting the ordinance, and that the ordinance was adopted after receiving “review and

comment” from both the Department of Health and the MDEQ.                       Cleary also introduced the

affidavit of Michael Slaughter, a professional engineer. In his affidavit, Slaughter did presume

                                                    12
not    to speak on behalf of any government agency,          rather he stated that it was his expert

opinion that the Cleary Ordinance was an appropriate measure to protect the health of the

residents who lived within the Cleary District.       It is apparent that neither of these individuals

has authority to speak for the Department of Health as to whether Cleary’s Ordinance conflicts

with any departmental rules or regulations.

¶23.    However, as mentioned above, Cleary also introduced the affidavit of Ralph Turnbo,

director of the Department of Health’s Onsite Wastewater division.             Turnbo stated in his

affidavit that the Department of Health did recommend that Cleary adopt an ordinance and

policy regarding on-site wastewater systems, that members of the Department of Health,

MDEQ, and the Cleary District met several times regarding this matter, that Cleary’s ordinance

did not “unlawfully encroach upon the authority of the Mississippi State Department of

Health,” and that the subject ordinance was adopted after review and comment of both the

Department of Health and the MDEQ.

¶24.    We find that the chancellor did not err in considering any of the affidavits before him;

however, we do find that he erred in granting summary judgment, as neither the statements

contained in those affidavits nor the pleadings in the record support such a decision in the

instant case. Based on the record before this Court, there is a genuine issue of material fact

as to whether the ordinance enacted by the Cleary District conflicts with rules and regulations

adopted by the Department of Health. Consistent with Weems, a determination should be made

as to whether Cleary’s “Decentralized Wastewater Use Ordinance” offends any of the

Deparment of Health’s policies. Summary judgment was also inappropriate as to the “takings”

argument raised by plaintiffs, and addressed below.

                                                 13
       B.      Takings.


¶25.   Plaintiffs allege that enforcement of Cleary’s Ordinance would be an unconstitutional

taking of private property under both the federal and state constitutions.       See U.S. Const.

amend. V; U.S. Const. amend. XIV; Miss. Const. art. 3, §17. This contention is based in large

part on the “Decentralized Wastewater Policy & Procedures” document which accompanied

one of the letters Cleary sent to its customers.    This document required property owners to:

(1) provide proof, at their own expense, that their septic system is working properly; (2) if

unable to provide that proof, they are required to install a new septic system approved by

Cleary; (3) the cost for the inspection and/or installation is borne by the property owner; (4)

the property owner is then required to deed ownership of the septic system to Cleary as well

as grant Cleary an easement to inspect and service the septic system, all without compensation;

and (5) the property owner must pay a monthly charge for maintaining the septic system that

is now owned by Cleary.

¶26.   Cleary states that the “Policy and Procedures” document it sent to customers was

repealed prior to submission of the parties’ cross-motions for summary judgment. To support

this contention, Cleary references the supplemental affidavit of Kenn Munn, which was

purportedly attached to Cleary’s Motion for Summary Judgment. In this affidavit, Munn stated

that the “Policy and Procedures” adopted in conjunction with Cleary’s Ordinance were repealed

and he further stated that the “Minutes of the Governing Authorities of the Cleary Water Sewer

and Fire District,” which reflected Cleary’s actions, were attached to his affidavit as an exhibit.




                                               14
¶27.    Munn may have submitted Cleary’s minutes as an exhibit; however, that exhibit is not

attached to his affidavit in the trial record before this Court. We have been unable       to locate

the “Minutes of the Governing Authorities” in any of the documents in        the record.     As the

chancellor made no specific findings of fact or conclusions of law in rendering his final

judgment, there is no record before this Court indicating whether these challenged policies

were in fact repealed, as Cleary contends, or are still in force. Further, the lack of a developed

record from the trial court prevents this Court from determining whether the chancellor even

considered plaintiffs’ takings claim in rendering his judgment, something the Court of Appeals

likewise failed to address.

¶28.    We find that a genuine issue of material fact exists as to the status of Cleary’s “Policy

and Procedures” provision and as to whether the lower courts addressed or passed on

plaintiffs’ “takings” claim.     Summary judgment is therefore inappropriate in this case, and we

find that the trial court erred in granting Cleary’s motion and that the Court of Appeals erred

in failing to address this “takings” issue on appeal.

                                          CONCLUSION

¶29.    This Court finds that Cleary does have the authority to enact its “Decentralized

Wastewater Use Ordinance” under its general police powers; however, this ordinance must not

run counter to the rules and regulations enacted by the Mississippi State Department of Health,

which has statutory authority to regulate in this area under Miss. Code Ann. §§ 41-67-1 et seq.

This Court also finds that the trial court erred in granting, and the Court of Appeals erred in

affirming, Cleary’s motion for summary judgment, as a genuine issue of material fact exists



                                                        15
as to whether the Cleary Ordinance conflicts with Department of Health regulations.            A

genuine issue of material fact also exists regarding whether the “Policy and Procedures”

provision which Cleary sent to district residents is still in effect and whether enforcement of

the Cleary ordinance would constitute a taking without just compensation. Therefore, we

reverse the judgments of the Court of Appeals and the Rankin County Chancery Court, and we

remand this case to the chancery court for further proceedings consistent with this opinion.

¶30. REVERSED AND REMANDED.

    WALLER AND COBB P.JJ., EASLEY, CARLSON, DICKINSON AND
RANDOLPH, JJ., CONCUR. SMITH, C.J., AND DIAZ , J., NOT PARTICIPATING.




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