August 26, 1946

CCF

Stanley Howard Knowles (Whip of the Co-operative Commonwealth Federation)

Co-operative Commonwealth Federation (C.C.F.)

Mr. STANLEY KNOWLES (Winnipeg North Centre):

Mr. Speaker, I think we are all agreed as to the necessity of some such amendment to this act as that proposed by this bill, but there are two comments which I want to make.

First of all, I am very sorry that this legislation is the occasion, as indicated by the Prime Minister (Mr. Mackenzie King) on July 12, for the postponement of any dealing with old age pension legislation in this session. We had been given to understand that there would be such legislation, but later on, on the date indicated, the Prime Minister made it clear to us that by virtue of this act the decision had been made not to introduce such legislation this year but rather to bring it down next year. I am sorry that that is the case. I earnestly plead with the government that there be no further delay than the earlier part of the next session in the bringing down of old age pension legislation, and I hope that when it is brought down it will be adequate.

The other matter about which I should like to say a word is this. I feel the government has been exercising authority by order in council for so long and in so many cases that at times it gets a bit slipshod in its use of that power. I must register my protest against an action which was taken a short while ago, which we managed to get hold of by questions in the house. On Saturday, August 17, we were discussing with the Minister of Reconstruction and Supply (Mr. Howe) certain

'Mr. Bracken.]

matters relating to the Aeronautics Act. I asked about the implementation of a certain section of that act, and I was told by the minister in definite language, as recorded on page 5002 of Hansard, that the section of the act had been changed by order in council. I indicated that I had not heard of that particular order in council, but I was assured that it had been tabled. Well, even at that procedure I was annoyed, because it seemed to me that the provision in the act as passed by this parliament in 1944 was very definite, and that the government was exercising pretty wide use of its powers under order in council to change a significant and important section in an act of parliament. But my concern for that procedure led me to try to get hold of a copy of the order in council. That effort was in vain. I was informed in due course in the privy council office that there was no such order in council. Accordingly, I raised the matter in the house on the orders of the day on Tuesday, August 20, as recorded in Hansard at page 5077. I asked on that 'day for the Minister of Reconstruction and Supply to indicate the number and date of the order in council. He replied to me:

My legal department calls my attention to the fact that there was no order in council.

I asked under what authority this matter had been dealt with, and was told by the minister that it was done by a cabinet decision arrived at on February 16 last. Now, Mr. Speaker, I ask the Minister of Justice to follow this pretty closely. I grant that maybe it was a slip and perhaps the government should be pardoned a little bit for an error now and then, in face of the tremendous amount of business it has to do. But when a cabinet, merely by a decision it makes within the four walls of a cabinet meeting, changes an act of parliament without even going to the bother of getting an order in council, it does become serious.

I have done a little studying of this matter in "The Law and Custom of the Constitution", by A. V. Dicey. But for the fact that I do not want to take much time I could read from that book, with which I am sure the Minister of Justice is familiar, the comments on this whole practice of royal proclamations and legislative action by the executive. The thing which interests me is the opposition there has been to orders in council down through the years of British parliamentary history; and when you get to the end, this at least is clear, that there are recognized only two methods of legislation: one, which is frowned upon, orders in council; the other, acts of parliament. There is no provision for legislation by cabinet decision. Yet the Minister of Reconstruction and Supply told me

Emergency Powers

that this change in an act of parliament was made by a cabinet decision arrived at on February 16 last. If I understand correctly, the minutes of the cabinet meetings are not kept, at least are not made available to the public. My information is that decisions of the cabinet, of the government, have effect and force only when they become orders in council made by the governor general in council on the recommendation of the cabinet or a minister thereof. The Minister of Reconstruction and Supply read from a decision arrived at by the cabinet. This was the decision, according to the minister:

The cabinet, after discussion, agreed that the time limit for separation of control of air services from that of railways be extended for another year, i.e., until two years after the end of the European war.

I am not discussing the issue itself, the actual decision changing one year to two years, but the whole principle of this kind of change being made in this instance not by order in council but by a cabinet decision. I quote further from Hansard at page 5077:

Mr. Knowles: I rise to a question of privilege. The section of the act says that it must be done by the governor in council. There was no order in council, and therefore I suggest that the act has been violated.

Mr. Mackenzie: It does not have to be under

an order in council; the government decides in council.

In other words this was not just a slip on the part of the Minister of Reconstruction and Supply; the Minister of Veterans Affairs (Mr. Mackenzie), the leader of the house at the present time, concurred in the practice. I continue quoting from Hansard'.

Mr. Coldwell: Without the authority of parliament? May I ask the Minister of Reeon-strucion, or the leader of the house, if either of these gentlemen means to imply that the government has authority to do what is not authorized by this house or by statute?

Mr. Mackenzie: The government of the Dominion of Canada is a responsible body, responsible to parliament and responsible by answering questions on the floor of the house, and whether there is an order in council or not the government can take action and answer to parliament accordingly.

Mr. Knowles: That is not the way the act

reads.

I should have said, "that ain't the way I hear'd it." It does seem to me that even if this is only a slip, and even if it has been taken care of in some other way since it was brought to the attention of the government as was done on that occasion, I should be remiss in my duty if I did not make this further comment, that the government should be very careful under their powers to legislate by order in council, and certainly that this kind of thing should not happen again. It

leaves me with the question of whether or not it has happened in other instances. It was by pure accident that I found this out, by pressing the minister for the information about that order in council which he told me had been passed; and my interest in it, as I have already said, led me to try to get a copy of the order in council. This was the result. I suggest to the government that they should be very careful in the exercise of powers through the medium of order in council. This kind of thing certainly must not take place; there is no provision for it whatever; and even when they do things by order in council I suggest they should be very careful not to go beyond the intent of parliament in the legislation that is passed by this house.

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CCF

George Hugh Castleden

Co-operative Commonwealth Federation (C.C.F.)

Mr. G. H. CASTLEDEN (Yorkton):

I want to add my protest to that of the hon. member for Winnipeg North Centre (Mr. Knowles). I believe every citizen of Canada should be fully informed of what is happening here to-day, when this type of thing can take place. Surely it is the duty of every member of parliament to act as custodian of the freedom of the people, and to see that the democratic procedures of government are followed. Members of parliament are sent here as representatives of the people. We pass the laws. The act to which the hon. member refers does not contain any provision under which it may be altered by order in council. There is a right to enact regulations by order in council, but there is no right to change acts. Here we have an act actually changed, not even by an order in council but, as the minister has said, by the cabinet discussing the matter and agreeing that the time limit for separation of control of air services from that of railways be extended for another year, that is, until two years after the war.

I want to know whether the Minister of Justice (Mr. St. Laurent) condones that sort of thing, and what the other members of the cabinet think about what was done in this case. The minister himself will be expected, when he comes before this house, to explain why he informed hon. members that an order in council had been passed, as he did on August 17, at page 5002 of Hansard'.

The effective date of this legislation has been advanced by order in council passed under the emergency powers act.

Then the hon. member for Winnipeg North Centre said:

I suppose that order in council was tabled?

Mr. Howe: Yes; all orders in council passed

under the emergency powers act are tabled.

Emergency Powers

But there was no such order in council, so naturally it was never tabled. I can remember that in 1935 and during previous election campaigns the Prime Minister went from coast to coast telling the people about order in council government. We learned something about democracy in those days; still we have this sort of thing happening in Canada. Every member of parliament should be alert and on guard, watching what is going on. Is this type of thing to be condoned in Canada? I shall have something more to say when we get into committee.

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PC

James MacKerras Macdonnell

Progressive Conservative

Mr. J. M. MACDONNELL (Muskoka-Ontario):

Mr. Speaker, I should like to make one brief comment. I believe the question raised by the hon. member for Winnipeg North Centre (Mr. Knowles) is of far-reaching importance, and I for one hope that the Minister of Justice (Mr. St. Laurent), whose opinion would carry great weight both in this house and throughout the country, will not let this debate conclude without saying something on the point, particularly in reference to the statement of the Minister of Veterans Affairs (Mr. Mackenzie) which to me, though I am not a constitutional expert, certainly did seem an interesting and extraordinary proposition.

Mr. SOLON E. LOW (Peace River): Mr. Speaker, the incident which has been brought before the house by hon. gentlemen to my right emphasizes one of the grave dangers inherent in government by order in council, and indicates that the sooner we can get rid of the emergency powers act the better it will be for government in Canada. Before the Prime Minister (Mr. Mackenzie King) left for Europe he had a chat with some of us, and on behalf of this group I agreed that if he would call the 1947 session as early as possible in January we would support the amendment to the National Emergency Transitional Powers Act, which is now before us. I am going to stand by the agreement I made at that time; aS I say, I gave the undertaking that we would support it, on that one condition. However, I did like the amendment suggested by the leader of the opposition (Mr. Bracken); I do believe it is a safeguard, and when the minister speaks I should like him to indicate whether the government will be prepared to accept such an amendment, because my own feeling is that I should support it.

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CCF

William Irvine

Co-operative Commonwealth Federation (C.C.F.)

Mr. WILLIAM IRVINE (Cariboo):

I want to say just one word. I think the matter which has been brought to the attention of the house by the hon. member for Winnipeg

North Centre (Mr. Knowles) is something regrettable, if the facts are exactly as he stated them to be. I hope the minister will be able to give a satisfactory explanation to the house. Personally I am not prepared at the present time to give up all controls which the government now holds. I supported the extension of these controlling powers some time ago, and I will still support them until such time at it may be proper to remove them. I am not sure that we shall ever remove all of them. I hope not, because I think somebody has to control something some time in order that we may go somewhere instead of nowhere.

Mr. ST. LAURENT: Mr. Speaker-

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LIB

William Ross Macdonald (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Liberal

Mr. DEPUTY SPEAKER:

I must inform the house that if the minister speaks now, he will close the debate.

Mr. ST. LAURENT: With respect to the suggestion of the leader of the opposition as to an amendment, may I refer hon. members to page 3157 of Hansard of July 5, 1946, where the Prime Minister (Mr. Mackenzie King) made this statement:

I believe it would be meeting the wishes of hon. members generally if I were to give an immediate undertaking that, unless something unforeseen may occasion us to call parliament sooner than the time I am going to mention, or something occur which might render it desirable to take an extra week or two before calling parliament, parliament will be called before the end of January, probably the last week in January.

The implementing of that undertaking would have the same effect as the amendment suggested by the leader of the opposition. I will not oppose the addition of that amendment to the bill, although it does seem to me that it is perhaps unnecessary in view of the categorical statement made on July 5 by the Prime Minister.

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PC

John Bracken (Leader of the Official Opposition)

Progressive Conservative

Mr. BRACKEN:

In the statement the minister has read there is mention of "something unforeseen" happening. It is just to cover those unforeseen things that I advanced my amendment.

Mr. ST. LAL'RENT: If something unforeseen did happen and it became impossible to have parliament meet and deal with the existing situation, a pretty chaotic condition might arise. I am not going to take the responsibility of dividing the house upon it, but I do wish hon. members to realize that there has been as positive an undertaking as any responsible Prime Minister could give, subject of course to unforeseen conditions. We know in recent years that unforeseen happenings do occur. If the house feels that it should take

Emergency Powers

the responsibility of making this terminate on March 31, even though there should be unforeseen conditions that might make it impracticable to have the house meet as stated by the Prime Minister, I shall not ask the house to divide on such an amendment. But I do suggest that the possible disadvantages appear to outweigh the possible advantages of having that addition made.

I wish to tender my sincere thanks to the bon. member for Winnipeg North Centre (Mr. Knowles) for the reasonable and understanding way in which he has made his suggestion. I have not had an opportunity of going into this matter in detail, but there is no doubt that there cannot be any amendment of legislation by a decision of the cabinet. My understanding was that the decision of the cabinet was to refrain from taking any action, but there will have to be by regular constitutional methods an amendment made to the legislation. I have not had an opportunity of examining the statute in question in order to express an opinion as to how that legislative change could be made. Section 14 of the act reads:

Every licence issued under part III of the Transport Act, 1938, or under part VII of the air regulations, 1938, prior to and in force at the time of the coming into force of this part shall be deemed to be a licence issued under section twelve of this act, but every such licence if not cancelled or suspended by the board under section thirteen of this act, shall cease to be valid one year after the termination, as fixed by order in council, of the war in Europe which commenced on the tenth day of September, one thousand nine hundred and thirty-nine.

There has not yet been any date fixed by order in council as the date of termination of the war which commenced on September 10, 1939. There has been for the purposes of the War Measures Act an enactment by parliament that the War Measures Act would come to an end when the National Emergency Transitional Powers Act came into force. My understanding was that the decision of cabinet was merely a decision that it would not take steps to force the railway companies to divest themselves of licences for air transport. There was no attempt made to modify the legislation; it was merely a decision as to what conduct would be adopted by the department. All hon. members who have spoken about this are quite right in saying that there cannot be amendments of legislation except by parliament or when parliament has so authorized by order in council. '

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CCF

Stanley Howard Knowles (Whip of the Co-operative Commonwealth Federation)

Co-operative Commonwealth Federation (C.C.F.)

Mr. KNOWLES:

The minister told the house that as he understood it the effective date of section 14, which you have just read, was May, 1946. The minister stated that 63260-338

an order in council had been passed, and it was when that order in council was not available that he told us this decision had been taken by cabinet. I do not wish to press the matter a great deal further, because I am glad to have on the record the opinion of the Minister of Justice that such action certainly was not in order if it was taken in that way.

Mr. ST. LAURENT: As I said before, I am glad that the hon. member has used the language he has in commenting upon it.

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CCF

Stanley Howard Knowles (Whip of the Co-operative Commonwealth Federation)

Co-operative Commonwealth Federation (C.C.F.)

Mr. KNOWLES:

Don't do it again, or the language will be tougher.

Mr. ST. LAURENT: Hon. members know that we have all been under tremendous pressure; when a question is raised in the house without notice one replies according to what his impression of the facts may be at that time and it can happen that that impression may not be strictly accurate. With respect to the question of law, there is no doubt that no amendment can be made by a decision of the cabinet unless parliament states that it shall be made in that way. I do not know of any legislation under which parliament has so stated. The conduct of the administration in carrying out the legislation of parliament is conduct about which decisions of cabinet are frequently made and with respect to which the administration is responsible to this house. I am sure that is what was meant by the Minister of Veterans Affairs (Mr. Mackenzie), because I do not think anyone would attempt to say that amendments can be made to statutes, or even to orders in council adopted under statutes, by any other method than an act of parliament or an order in council made under powers granted by an act of parliament.

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CCF

Stanley Howard Knowles (Whip of the Co-operative Commonwealth Federation)

Co-operative Commonwealth Federation (C.C.F.)

Mr. KNOWLES:

So the section the minister read still stands as law?

Mr. ST. LAURENT: Here again, unless there has been legislation, and I do not know of any, or unless there has been an order in council, and I do not know of any, it still stands as existing law.

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Motion agreed to, bill read the second time, and the house went into committee thereon, Mr. Macdonald (Brantford City) in the chair. On section 1-Continuation.


PC

John Bracken (Leader of the Official Opposition)

Progressive Conservative

Mr. BRACKEN:

I think it is to this section that the amendment I proposed should be moved. As I said, it would not change the intention of the government as expressed by its own amendment. My amendment simply asks that if for any reason parliament should

Emergency Powers

meet later than. January, by that action this statute will not be extended. That is all. So that hon. members may understand it, I will read the section as proposed to be amended by the government, together with the addition I propose:

Subject as hereinafter provided, this Act shall expire on the thirty-first day of December, one thousand nine hundred and forty-six, if parliament meets during November or December, one thousand nine hundred and forty-six, but if parliament does not so meet it shall expire on the sixtieth day after parliament first meets during the year one thousand nine hundred and forty-seven.

The words I propose to add are: or on the thirty-first day of March, one thousand nine hundred and forty-seven, whichever date is the earlier.

That does not tie the termination of the act to a movable date, and it does not shorten the period within which the government has indicated its willingness to amend the act.

Mr. ST. LAURENT: Mr. Chairman, I do not want to repeat at length what I have said. I will not ask to divide the committee upon it. I think it is possibly dangerous to have my hon. friend's amendment made. I will give just one illustration, not that I have any reason whatsoever to feel that there is any probability or even reasonable possibility of its happening. But should there come about something which required a dissolution of parliament-

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?

An hon. MEMBER:

Like an election?

Mr. ST. LAURENT: Like an election, parliament might not after the present prorogation have another opportunity before March 31, 1947, to do anything that would retain for any further period the wartime prices and trade control, rent control, the control of marketing required to carry out the international agreements that have been signed. That would bring about a chaotic situation. I do not think there is any chance of its coming about. Nevertheless, in French we have a proverb "gouverner, c'est prevoir," and if that should come about I would not like it to be felt that it was the responsibility of the government. If it should come about, it would have to be regarded as the chance that was taken by parliament itself and I should like to have it remembered that I advised against it. I think that everything that would be achieved by the amendment will be achieved under the undertaking given by the Prime Minister, and it would be only if the very unexpected thing should happen, of which there does not seem to be the remotest possibility at the present time, that the earlier date would be the one

expressed in the amendment of the hon. leader of the opposition. I respectfully submit that the possible disadvantages do outweigh the possible advantages of having that fixed date written into the law.

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PC

John Bracken (Leader of the Official Opposition)

Progressive Conservative

Mr. BRACKEN:

Whatever action is taken by the house on this amendment, the government must accept responsibility for it, because it has a majority in the house. I say that only because of the argument just made by the minister.

I have only one other thing to say. This question was raised by the Prime Minister in June or early July last with I think all the leaders of parties on this side of the house. Certainly it was taken up with me, and I agreed to it, on the condition that this house would meet in January. At that time there was no condition laid down such as "something unforeseen" happening.

Mr. ST. LAURENT: Oh yes, there was. If the hon. member will just look at Hansard-

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PC

John Bracken (Leader of the Official Opposition)

Progressive Conservative

Mr. BRACKEN:

I am not talking about what appears in Hansard, but of what the Prime Minister said when he called us in and asked if we would agree. I said we would if the house met in January. The Prime Minister said he would give that undertaking. But when he came into the house he qualified that undertaking by saying, unless "something unforeseen" happened parliament would be called in January. Mr. Speaker, this is not something for prolonged debate, and I have nothing more to say except this: If the government intends that this statute shall not be continued beyond March 31 next, we will accept the government's amendment, subject to the one I have just moved; but if it wants to extend the act for some reason or other beyond that date, we could not agree to it.

Mr. MaeINNIS: I consider the amendment proposed by the leader of the opposition to be a reasonable one in the circumstances. I do not think anyone in this house can accuse me of not being reasonable, particularly in this matter. I felt last session when we were discussing the emergency powers bill that the official opposition were being unreasonable in their criticism of the extension of special powers which the government was asking for. I felt that the government because of circumstances should have a considerable amount of -if I may use the word-elasticity in dealing with affairs in transition. But I received a distinct shock when, the day before parliament adjourned, I think it was, after the act was amended, the government brought in orders

Emergency Powers

in council putting measures into effect with which parliament had definitely declared it would not have anything to do. So that on this occasion I feel that there should be a distinct limit to the powers which are exercised now under the National Emergency Transitional Powers Act. If they need to be extended later, after parliament meets, I believe this group will be prepared to deal with the matter then on its merits, but at the moment I think we should support the amendment made by the leader of the opposition.

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SC

Solon Earl Low

Social Credit

Mr. LOW:

I would urge the government

to accept the amendment; I believe it is a good one, and this group feels strongly that it should be adopted. If after the house meets again it is necessary to give the government support in any suggested changes which might be necessary to meet difficulties that will or may arise, we certainly will support them in the passing of an order in council or of any legislation they desire. But I would urge strongly that the government accept this.

Amendment (Mr. Bracken) agreed to.

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CCF

George Hugh Castleden

Co-operative Commonwealth Federation (C.C.F.)

Mr. CASTLEDEN:

It is interesting that

the minister said to-day that the only order in council passed in regard to the termination of the war is in regard to the termination of the war for purposes of the War Measures Act.

Mr. ST. LAURENT: No. What I said

was that no order in council had been passed, but that this house had, by a statute which was enacted last year, declared that for the purposes of the War Measures Act the war against Germany and Japan shall be deemed no longer to exist. That is section 5 of chapter 25 of the statutes of 1945. It reads as follows:

5. This act shall come into force on the first day of January, one thousand nine hundred and forty-six, and on and after that day the war against Germany and Japan shall, for the purpose of the War Measurts Act, be deemed no longer to exist.

That is what I was referring to.

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CCF

George Hugh Castleden

Co-operative Commonwealth Federation (C.C.F.)

Mr. CASTLEDEN:

That is the only action we have so far as the official termination of the war is concerned. There has been no termination of the war other than for the purposes of the War Measures Act, and the other order in council, P.G. 7514, dated January 4, 1946, for the purpose of the Excess Profits Tax Act. Otherwise we are officially at war with Germany and Japan?

Mr. ST. LAURENT: Under international

law we remain at war until the treaties of peace shall have been signed.

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PC

Agar Rodney Adamson

Progressive Conservative

Mr. ADAMSON:

Just one question on that. Surely the government of Germany no longer exists. There is no recognized government of Germany at all to be at war or peace with.

Mr. ST. LAURENT: But the German state does exist; the existence of war is existence of war between the allies and the German state, and German nationals are still technically to be regarded as enemies.

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CCF

George Hugh Castleden

Co-operative Commonwealth Federation (C.C.F.)

Mr. CASTLEDEN:

Officially as far as Canada is concerned the war will not be deemed to be terminated until there is some proclamation after the signing of peace; is that it? It complicates legislation in different parts of Canada with regard to agreements, collective bargaining agreements and leases and the rest, and arrangements between governments and various bodies to the effect that such and such a regulation shall continue so long as the war shall be deemed to exist, and they are waiting for the federal government to declare the war at an end to end that legislation. However, that is not the important point. So far as the government's action is concerned in advancing the date as it applies under section 14 of the Aeronautics Act, in doing that by a cabinet decision, do I understand the minister to say that that was just an oversight, that they had no intention of changing legislation?

Mr. ST. LAURENT: I have said nothing of the kind.

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CCF

George Hugh Castleden

Co-operative Commonwealth Federation (C.C.F.)

Mr. CASTLEDEN:

Is it the intention of the government at this time to pass an order in council in respect of that?

Mr. ST. LAURENT: I am not in a position to say what are the intentions of the government. Frankly I do not remember whether I was present on this occasion when the cabinet decision referred to by the minister was made. The minister has said here that in his opinion this change should be made and that he would in due course recommend it, and I think he was asked if he did not think that his opinion would have , considerable weight with his colleagues. Nevertheless I am not in a position at this time to state what will be the government's policy in that regard.

Section as amended agreed to.

Bill reported, read the third time and passed.

63260-338;

Militia Pension Act

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Subtopic:   CONTINUATION OF ACT UNTIL DECEMBER 31, 1946, OR SIXTIETH DAY AFTER OPENING OF 1947 SESSION
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August 26, 1946