Morning Oregonian. (Portland, Or.) 1861-1937, March 02, 1909, Page 10, Image 10

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THE 3IORXIXG OREGOXIAN, TUESDAY.
MARCn 2, 1909.
LONG. HARD FIGHT
BEGUN FOR L
Preliminary Round of Suit
for Nearly 3,000,000
Acres Started.
FENTON SPEAKS FOR ROAD
Argues AH Day on Demurrer to
Complaint, Alleging Iack of
Jurisdiction and Insufficient
Grounds Against O. & O.
Counsel for opposing sides in the eult
rf the Government against the Oregon &
California Railroad Company, et al.. for
the forfeiture of a grant to nearly 3,000.
000 acres of valuable timber lands in this
etate are fighting the preliminary round
of what will prove a protracted legal
battle for the possession of the property
Involved. Argument on the demurrer of
the railroad company t the Government's
bill of complaint was begun yesterday be
fore Judge Wolverton in the United
States Court. TV, D. Fenton, of this city,
speaking for the railroad company,
argued all day yesterday and will not
conclude until some time today. Argu
ment on the demurrer, which involves
the vital issues in the litigation, will oc
cupy the greater part of the week.
In arguing the demurrer, which alleges
lack of Jurisdiction and insufficient
grounds on which to prosecute the suit,
Mr. Fenton outlined plainly the position
of the railroad company and the conten
tion as to the grant and Its terms which
are sought to be declared forfeited by the
Government. He represented that the
errant by which the lands were conveyed
to the railroad company was a contract
given for a valuable consideration the
construction and operation of a railroad
system through a pparsely settled com
munity In pursuance of the Government's
policy of internal improvements. The
very terms of the grant, he said, Indicated
that its purpose was to aid the construc
tion of a railroad. Furthermore the
errant, he asserted, carried with it the
right of immediate eale of the land that
the purpose for which it was made might
be aided. It was argued that in making
the grant. Congress did not contemplate
actual settlement of the lands, the bulk
of which were incapable of settlement.
Not Necessary to Tile Assent.
Failure on the part of the beneficiary
the railroad company to file its assent to
the terms of the grant, contended Mr.
Jenton, did not operate as a forfeiture
of the grant for the reason that an ac
ceptance of its terms was not required by
law and even had it been filed it would be
only evidentiary of a ministerial act. He
pointed out that the assent referred to in
the Government's bill of complaint should
nave been filed on or before July 25.
1Sj7, or one year after the grant was
made. On the contrary. Congress on
June 25, 1868 extended for 18 months the
time in which the lirst 20 miles of the
projected railroad should be completed
without Incorporating in that act any
mention or requirement as to the filing of
en acceptance on the part of the railroad
company. This, he said, amounted to a
waiver by the Government of that conten
tion and vested title to the lands abso
lutely in the railroad company. Under
the circumstances, counsel argued that
the Government thereafter could only
peek a forfeiture of the grant on the
icrounds that the beneficiary failed to con
struct the railroad within the time pre
scribed in the grant.
The act of April 10, 1S69, stipulating that
the land Included in the grant should
be sold to actual settlers in quantities of
rot more than lfiO acres and at not to
exceed $2.60 an acre, insirted Mr. Fenton,
was imposing a condition precedent to
the original grant, an impossible and un
precedented judicial practice. Forfeiture
of the lands included in the grant, he
Bald, could be made only by legislative
act; that the proceeding was not a judi
cial one and that Congress does not have
the authority to confer that right on a
court. .Authorities were cited in support
of the contention that all lands included
in the grant to which title had issued six
years prior to the commencement of the
Government's suit could not be affected
by the pending litigation for a cancella
tion of the grant.
Says Government "Without Kquity.
The complaint was demurred" to by the
railroad company on the grounds that
the Government was without equity for
the reason that the grant was without
conditions and for the further reason that
the Government was not entitled to re
covery, since there was contained In the
grant no declaration ap to when the land
should be sold or to whom it should bs
6old. As to the SOU) or more intervrnors,
who appear as party defendants in the
suit, Mr. Fenton nuestioned their right of
appearance In the Federal Court on the
grounds that the amount involved in each
case was less than $2000. The bringing
of cross complaints Jointly by these
parties, he said, did not waive the Juris
dictional defect accompanying their ap
pearance in the suit.
Discussing the position of the inter
veners and actual settlers in their rela
tion to the suit and its possible outcome,
(Mr. Fenton held that they not only were
not entitled to discovery or reoovery of
the lands they sought to acquire, but that
should, the grant be forfeited, the land
(would revert to the Government and be
come public land, subject to entry and
bettlement under existing land laws. In
Chat event counsel maintained that all
such claimants would be cut oft at the
ipockets without having gained any ad
vantage through their attempted settle
ment or application for the purchase of
the lands.
In the course of his argument, Mr. Fen
ton charged that the interveners were
men that had waited for 40 years before
undertaking to acquire any of the granted
lands. In the meantime, he said, the
property by reason of its timber wealth,
Iliad become Immensely valuable and was
exceedingly desirable at J2.50, the price
for which they sought to purchase it. The
railroad company, declared counsel, had
paid many times that amount on the land
In the way of taxes. Counsel insisted
that under the most reasonable interpre
tation of the act of April 10. 1S, the
term "actual settlers" applied only to
those who actually settled upon the lands
nd undertook their settlement between
the time the grant was made in 1S6 and
the date that the railroad company filed
its map of survey.
AmendVd Demurrer Sought.
Just before court adjourned for the
day, George X. Wright, of Albany, rep
resenting several of the . intervenors.
asked permission to amend his clients'
demurrers to the Government's complaint
to the effect t'aat the value of the tracts
of land sought to be obtained by them
was now In excess of J2000. It was to
meet the jurisdictional objection counsel
for the railroad company had raised to
the suits by too intervenors that this re
quest was made. It was objected to by
Mr. Fenton, representing the railroad,
and Judge "Wolverton announced that he
would, fee ari argument eg .Job eppllca-
AND
tion before that particular phase of the
controversy was discussed.
In Its suit the Government is seeking
a forfeiture of the grant, alleging non
compliance by the railroad company with
the terms of the grant. If this relief la
denied. Government asks that the condi
tions of the grant be enforced under
decree of the court in the sale and dis
position of 2,373,000 unsold acres of the I
original grant. At the same time an I
accounting from the railroad company Is
demanded for the 540,000 acres of the
granted lands which already have been
sold.
The order in which the demurrer shall
be argued by the counsel representing the
different interests to the suit was deter
mined at the opening of yesterday's ses
sion. Mr. Fenton, for the railroad, will
be followed either by B. D. Townsend or
Tracy Becker, special assistants to the
Attorney-General. The Government will
be followed by A. W. Lafferty, of this
city, and William H. Flett, of Seattle, in
behalf of the intervenors.
Over a score of lawyers are In at
tendance on the argument on the de
murrer. Associated with Mr. Fenton and
Mr. Dunne, for the railroad company. Is
William Singer, Jr., of the land depart
ment of the Southern Pacific at San Fran
cisco. The Government is represented by
Mr. Townsend. Mr. Becker and United
States Attorney John McCourt. John M.
Gearin, of the firm of Dolph, Mallory,
Simon & Gearin, counsel for the Union
Trust Company, and Neil Brown, of
Wassau. Wis., representing some of the
Individual purchasers of the granted
lands, were interested spectators at yes
terday's hearing. Their clients are not
directly Involved as parties to the pend
ing proceeding. Of the large number of
laywers from different sections of the Pa
cific Coast appearing for the intervenors,
the following were present yesterday:
B. W. Coiner, of Tacoma; W. H. Ferrin,
of Marshneld: A. C. Woodcock, of Eugene;
John Mills Day, William H. Flett and M.
E. Brewer, of Seattle; George W. Wright,
of Albany; Oglesby Young, Mark O'Neill,
L. C. Garrigus, A. W. Lafferty, J. O. B.
Scobey, of Portland.
NEW GRAND JURY DRAWI.
MEX TO SERVE DtKING MARCH
TERM OF COVRT CHOSEX..
Of 110 Veniremen Subpoenaed for
Jury Duty, Only 62 Report, and
15 Are Excused.
COUNTY GRAND JURY FOR
MARCH.
C. E. Parpenter, foreman, carpen
ter. Montavllla.
B. J. McClaln, cabinet-maker, 1029
Corbett street.
A. B. Kuempel. cabinet-maker, 408
Morris street.
M. Oevold. 652 Belmont street.
K. R. Mark ham, real estate, 898
Williams avenue.
Q. E. Wheeler, conduotor, Monta
vllla. Robert Speer, laborer, Montavllla.
The March grand Jury was drawn in
the Circuit Court yesterday morning. Two
cabinet-makers, a conductor, real estate
man, a carpenter and a laborer will re
turn indictments during the month. Pre
siding Judge Gantenbeln charged the Jury
at 2 o'clock yesterday afternoon.
Of the 110 veniremen supsnaed only 62
reported yesterday morning, the other 48
having been excused for various reasons.
About 15 more were excused yesterday
morning, leaving about half the original
number, who will do Jury duty. Three
Jurymen said their hearing was so af
fected that they could not serve. They
were excused. Several said they have not
been admitted to citizenship, and others
have sickness in their families. Another
juryman said he is conducting a small
grocery store, and has no one besides
himself who can attend to It. If com
pelled to do Jury duty for a month the
business would suffer. He was excused.
Still another Is foreman for a contractor
who took a contract last Saturday to
complete a number of buildings within a
specified time. Although the talesman
said his services in overseeing the con
struction work would be needed, he was
not excused. The court intimated that
if necessary he might be excused later.
The grand Jury's quarters have been
changed to the Chamber of Commerce
building, as the room at the Courthouse
formerly occupied by the talesmen Is
being fitted up for Judge Gatens, the new
Circuit Court Judge.
COUNSEL FOR HARRIMAN
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KKAUIG KBOM LEFT TO RIGHT
PARTY IS AFTER
GOOD CANDIDATES
Republicans Laying Plans for
Sweeping Victory in the
June Election.
CITIZENS TALK POLITICS
Sentiment Favors Persuading Men
of Prominence and Ability to
Enter Race General Meeting
to Be Held Wednesday.
The meeting of the committee of cltl
ens to consider the coming municipal
primary and June election iwaa held yes
terday afternoon at 4 o'clock at 1023 and
1025 Board of Trade .building. The fol
lowing gentlemen were present at the
discussion: S. C. Pier, E. B. Colwell, Dr.
J. Whitcomb Brougher, General Charles
F. Bee-be. J. T. Gregg, Dr. Andrew C.
Smith, Dr. J. H. Pettit. A. B. Manley,
W. D. Fenton, and J. K. Kertchem.
The plan of the committee, as formu
lated by those present, is to aid in every
possible way the recommendation to the
Republican voters at the May primaries
candidates for all the offices to be filled
in June whose character and efficiency
would be of the highest possible stand
ard. It was pointed out that the Re
publican party In Portland has within its
.ranks men whose names and careers are
part and parcel of the city's highest
achievements. It is the duty of those In
terested n seeing the party win In June
to bring about by every honorable and
sincere means the selection of standard-bearA-s
whose merits will be recognized
among the rank and file, not only of the
Republican party, but of the citizsns of
Portland, irrespective of party, the com
mittee believes.
It -was declared that Oregon and Port
land owe the brightest pages in their
history to the principles of the Republi
can party, and the prophecy was made
that with a. high-class candidato for
every office within the gift of the peo
ple of Portland, the Republican party
would make a clean sweep at the city
election in June.
Xo Names Mentioned.
The committee did not consider, nor
does it Intend to consider any plan to
tender nominations to any one. It did
not mention a solitary name for any of
fice or offices to be voted on in June.
Nor did it assume to control, direct, or
name any candidate whatsoever to be
voted on at the May primary. The com
mittee sat as a body of representative Re
publicans and citizens endeavoring to
bring about' the cementing and consoli
dation of the Republican party, by as
sisting in the task of getting from the
ninlts of the party the best timber ob
tainable tor the various offices: and
helping in every way to insure the suc
cess of sum candidates when selected
and nominated by the people at the pri
mary. Republican voters, it was asserted,
would rally to the men chosen from the
party at the primary, if the selection
at the primary is a wise one. To the
end that all Republicans might confer
and consider the wisest and most ef
ficient manner of securing the best can
didates, the committee believed there
should be general, open and public con
ferences and discussion.
To that end, the assemblage already
mentioned In yesterday's paper as being
contemplated, was finally arranged to
take place Wednesday evening at the
Selling-iHirsch hall, at 8 o'clock.
At this gathering, it is proposed to
crystallize the sentiment of the Repub
lican party as to the best method of
getting unimpeachable men to accept
the nominations for the various city
offices, and to organize for their elec
tion. Just what action the assembly
will take cannot be predicted. The
committee, headed by lr. Pier, will be
present with others, 'and it may be
that this Initial gathering launched
INTERESTS IN GOVERNMENT LAND-GRANT SUIT INVOLVING
NEARLY THREE MILLION ACRES.
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- l'ETER V. DUMK AU WILLIAM
I). KEXTOV, OK THIS HT1.
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for Republican success may be fol
lowed by others.
Assembly May Form Plan.
It is possible that the assembly on
Wednesday night may formulate some
decisive plan of action, depending up
on the sentiment of the men present.
Air. Pier's committee holds itself ready
to act with the party in the effort to
get candidates whose fitness cannot
be challenged, either at the May pri
mary or the June election.
What method of procedure win be
adopted at the gathering at the Sell-lng-Hirsch
building cannot even be
guessed, as it is called for conference
merely, and to learn the wishes of the
party as a whole. . Mr. Pier's commit
tee believes strongly in organization
now so that the party will be in shape
to carry on the fight vigorously in
.June. It believes with a list of good
candidates, and a thorough organiza
tion, the Democrats will not win a
single office.
It is possible some recommendations
as to the necessity of a hearty co-operation
on the part of all Repuollcans.
a cessation or all party differences,
and a suggestion of something con
crete in the line of a party campaign
may be submitted to the assembly
Wednesday night, for the purpose of
having the matter publicly and posi
tively understood.
The idea of the Citizens' Committee
is to have the gathering at Selllng
Hlrsch hall on Wednesday night a
thoroughly representative one of the
Republican party. Invitations will bo
sent out, and it is hoped there will be
a full attendance. The plan to get out
candidates whose merits will recom
mend them without dispute to the vot
ers includes not merely the office of
Mayor, but every office in the list.
The meeting of the committee in the
Board of Trade building vesterday
was earnest and enthusiastic and
every man there left the conference
believing that with the selection of
first-class candidates by the people at
the May primary, and a solid support
of them by the Republican party in
June an overwhelming Republican vic
tory could be won.
PLAN STATE-WIDE FIGHT
AXTI-SAIXJOTf FORCES ORGAN
IZE CAMPAIGN.
Rev. J. Tl. Knodell Asks Support of
Portland Ministerial Associa
tion In Orusatlo.
At the regular monthly meeting yes
terday of . the Portland Ministerial
Association. Rev. J. R JCnodell. of the
Anti-Saloon League, spoke of the work
or the league in this state and asked
the support of the association In in
augurating state-wide prohibition In
1S10. Mr. Knodell gave a comprehen
sive review of the work that has been
accomplished by the league, illustrating
his remarks by means of maps showing
the extent of the local option law since
Its passage in 1905. In that year the
anti-saloon forces won in eight coun
ties and In 195 precincts in other coun
ties. In the four years that the league
has been in existence it was shown that
its debt of $S500 had been reduced to
$1900. Mr. Knodell suggested the ad
visability of holding a state convention
In order to bring together those Inter
ested in Inaugurating a prohibition
movement. After a thorough discus
sion of the subject it was referred to
a special committee consisting of Rev'
C. W. Hays. Dr. W. T. Gordon and Rev'
J. I. Abbett. which will meet with the
Anti-Saloon League ofriclals to consid
er the advisability or a campaign in
the near future.
It was unanimously decided to extend
an Invitation to Gipsy" Smith, the
London evangelist, to hold meetings in
Portland. Drs. Dyott. Foulkes, Young
and Ghormley were appointed a com
mittee to arrange with tho Ministerial
Associations or Tacoma and Seattle for
a Joint Invitation to Evangelist Smith.
A committee composed of Drs.
Ghormley. Abbett and Sharpe drew up
resolutions or appreciation of Dr. W. II.
Heppe. pastor, of Grace Methodist
Church, who leaven soon to assume
pastorate of tho First Methodist Church
of 'Wichita, Kan. The resolutions will
be forwarded to the Ministerial Asso
ciation of that city.
Demurrer I Overruled.
Judge Wolverton In
States -Court yesterday
tlu United
rendered a.
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8IXCER, OF- SSAV FRt( lsr, w
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Join
Our
Special terms and special prices to one hundred members who enroll in our Special
March Range Club. We are authorized by the "Eclipse Stove Companv" to make
special concessions to one hundred buyers of our "Gevurtz All-Steel Raue" who
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Positively only one hundred ranges sold on these special terms, so do not hesitate
to enroll your name with us at the earliest date.
A DEPOSIT OF ONE DOLLAR
During the month of March will entitle you to secure the special terms accorded
this Special
"March Steel Range Club"
ONE DOLLAR will make 3-ou a member and entitle von to all its benefits, and
you may have your range delivered when vou are readv to receive it. Book
your order now. Don't hesitate don't wait get vour'name on the roll now
for m the busy season of the year we cannot handle the range business in this
manner.
PRICES FROM $35.00 to $55.00
MEN'S $10 SUITS$1.00 DOWN; $1.00 A WEEK
Medium weights, all sizes; values from $17.50 to $20, for only $10, and on above
easy terms.
FIRST
And
YAMHILL
STREETS
an opinion overruling a demurrer to
the complaint in the suit of the Amer
ican Sulphite Pulp Company against
the Crown-Columbia Pulp & Paper
Company. Damages are demanded by
the plaintiff company from the Crown
Columbia people for an alleged in
fringement of a patented process for
the manufacture of paper.
SCOPE TO BE ENLARGED
OKKGOX FORESTRY ASSOCIA
TION' PliAXS EXTENSION".
Committee Appointed to rxvise Ways
and Mennn of Conserving
Resources.
Aroused by the defeat of their FMre
Warden bill by the recent state Legisla
ture, members of the Oregon forestry
Association, at a meeting at the Com
mercial Club last night, dechled to en
large the scope of their work and
through organization se.-k two years
hence to secure the enactment of legis
lation necessary to the further con
servation of the timber and other na
tural resources of the state. That bet
ter results may be obtained. Kov, A. J.
Montgomery. E. T. Allen. F. V. Mul
key, A. B. Wastell and Wells Gilbert
were nominated last night as a com
mittee on ways and moans to d.-vise
some plan by wnlch the timber, mineral
and water interests of the state may
be united under one nrganlzat ion for
the mutual advnntnsre of each. This
committee is to make Its recommenda
tions, together with a list of ofneers
for the proposed new organisation, at
another meeting to be held at the com
mercial Club Slonday night. March 1R.
In addition to enlarging the scope
of Its labors. It Is the purrose of the
organization to Increase Its member
ship from SO to RO0O in the next year.
H. D. Langille. chairman of the meet
ing. J. N. Teal. E. T. Allen. Forest
Superrlsor; and A. P.. Wastell. of the
Oregon A Washington Lumber Manu
facturers' Association, made enthus
iastic talks urging the Importance of
co-operation if definite results are to
be accomplished.
Representative J. T. Abbott, chair
man of the Tfntise committee on wsys
Seats Now
on Sale
PORTLAND
SYMPHONY
ORCHESTRA
DAVID C ROSE BROOK, Conductor
Thursday Eve.,
Ivlarch 4th
Heilig Theater
SOLOISTS
ROSE ELCCH-BAUER . . . Soprano
WALDEMAR UND Violinist
Prices RO Crati to 92.OO.
Chlckerlng Piano Used.
AND SAVE $10 ON YOUR
wiil enron as members ot tins club and meet its con
ditions. Under these liberal concessions we are able
to offer you the
"Gevurtz Ail-Steel Range"
On the extra special terms terms that should ap
peal to all who need a new range and terms, too,
that must be convincing proof of the perfect confi
dence we have in the merits of our great ranee,
namely:
Down
and means at the recent session, ex
plained that the failure of the Fire
Warden bill to pass the two houses was
due to a lack of a proper demand on
the part of the interests Involved,
rather than to a disposition on the part
of the members of the legislature to
treat slightingly a subject of such vast
Importance to the state.
Insnmnce Is Demanded.
Judge Clelnnd Is hearing the suit of
Roy It. Woodruff against the Aetna
Insurance Company. He alleges that
he took out an accident policy with
the company, and on May 22. while
running for a car. sprained his ankle.
He was unable to work for two
months. h says, and demands $703 ln
surrtnee. Yesterilnv nfternooti
An Inhalation for
Whooping-Cough, Croup,
Coughs, Colds, Catarrh,
Bronchitis, Diphtheria.
Cremotone Is m Boon to Avthmatloo.
Dom It not mm mora rte-tir to breathe In a
remedy for dliemea of tbe breathing organ toaa
to tka the remedy Into the auunaca?
Cresolne cure beruw the air, rendered
trnnffly eatieeplto, t carried over the dtuaed
surface with erprr breath, aivlna proluncrd and
constant trectment. It la InrnluuMe to mothers
with "mall children.
For Irritated thrflat
there la noilunir tictter
titan Creanleiie AuUne;lio
Throat Tahiete.
tenl s.o in postage
for aauipV WMtle.
ALL DRUGGISTS.
Bond tKMtal fur do
enrlplira Booklet,
Vaso-Orrnelerie Ca
laO Kulton fctraot.
N-w Vert.
CHILDREN WHO ARB SICKLY
Mothers who valu thalr own comfort arid
th wMfar of tli?lr children, shuuld t.vr
b without & box of Mother ijrtv'i Fweel
I'owdr. for children, for u throughout
th usou They lreak up Cold. Cur
vrlilinfp. Constipation. TthmR Dia
oror. iffndnrhe and Stomach Tronhlea.
THESE I'OWIF.RR NH'ER FAIT tVId by
a:i truc Store, y.c. Don't accept ny nub
atitut A trial jn,-kair will b int F"REB
to anr mother who will addreaa AlUn R
01mitt3. Roy. n. T.
The most exquisite
cleanliness is necessary
in the care of bottles and
other utensils used in
the preparation of a
baby's food.
For this purpose, there
is nothing quite so good
as Ivory Soap.
Dissolve a few shav
ings of Ivory Soap in
a quart of hot water.
Rinse the bottles with
cold water, wash them
inside and out in the
Ivory Soap suds and
then scald with boiling
water.
Ivory Soap
994o Per Cent, rurc.
ei
G
tab
RANGE
SECOND
And
YAMHILL
STREETS
taken np in arguing points of law be
fore the court.
Who Is this Revswenom ? Pag 6.
flews for 1'ecffte N'orthweet Sol .nd OllmaUk.
ow on "1 l.i.l. y at all beet dealere. A k for Cata
locus. Jf not en aal e in sour neighborhood, writ
as. civlnc name of your dealer, and we will snail
yo a packet of flow er eeeo.s free for josr tranble
t'KUNT A.VU YAMHILL. STS.. Portland. Or.
PAILF.S AJill niGII-CLASS
DKMISTKV
Crown and llridste orlt a Specialty
1'tH'LL.AIt I'ltltiis
--K Unlil frown f
?ood Kiiblicr llnt . ""t
Host l:ui.hcr iMate
i:.ld Killings "
Hrl.Itr.j V..rk t
Sllvor Killnc. "'I
All other l'Mllncx """a
s.r.o
s.o
ei
l.on
I. OM
.so
.BO
Its
Kxtractintr. Ialn!es
ALL, Wttltlv Gt'tH.WTEED 10 V
Union Painless Dentists
COllNKR FIRST An MORRISON
MHEETS
Phonra, Main PlKIrt, A 2133.
A SXIn of Bsauty is a Jay Forev.'
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CREAM OR MAGICAL BEAUTIFIES!
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We tell you about how rood you'll
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that millions of people buy, us
and recommend them But that'
talk you buy a box now tak aa
directed to-niyht and get the proof
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CASCARET3 you'll never be
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IS
CASCARET ioc a box for a wefk't
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ASK -vDIAMOND
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