Hurley v. Commission of Fisheries of Va.

Decree of the District Court refusing a preliminary injunction,, but not dismissing the bill, in a suit to enjoin the appellees from removing stakes, etc., designating' oyster grounds planted by appellant-, and therein opening-them to public use, — affirmed.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF VIRGINIA. For a fuller statement of the case see the report, of the case below. Their principal contentions may be summarized as follows : The statute of Virginia, known as the Oyster Law. (Acts 1910, c. 343) contains only two sections applicable to the case at bar, to wit, §§ Í5 and 39. These provide for the resurveying of planting grounds, and in neither, nor in any other portion of the oyster laws, is any provision for a trial of the rights of an oyster planter, lessee of the State, whose beds adjoin the Baylor line, demarking the natural oyster grounds reserved to the public. While the statute1 provides for the ascertainment of a fact and uses the words “ it shall appear,” etc., there is no provision even for a notice to the occupant. It is therefore submitted that under the Constitution the Commission of Fisheries did not have jurisdiction to determine the property rights of appellant. Appellant had built up and improved the grounds by planting; had been allowed by the State’s officers to stake them and •pay taxes for rental; was thereby an actual lessee of the State. At the time of the proceedings instituted by the Commission his property, in the shape of planted oysters upon the grounds held by the Commission to be public bottoms within the Baylor survey, were of the value of more than $8,000. By the action of the Commission, it has been determined that the stakes designating the grounds of appellant shall be at once removed and that his planted oysters shall be thrown open to the public, and that he, the owner, shall not be permitted to take possession of or to remove the same, — thus confiscating, without any legal proceedings, the property of appellant. It is contended by appellees that appellant appeared before the Commission. “ It is not enough that the owners may by chance have notice, or that they may, as a -matter of favor, have a hearing. The law must require notice and give them the right to a hearing, and an opportunity to be heard. . . . The constitutional validity is to be tested, not by what was done under writ, but by what may by its authority be done.” Stuart v. Palmer, 74 N. Y. 183; Taylor, Due Process, § 133; Coe v. Armour Fertilizer Works, 237 U. S. 413, 424; Central of Georgia Ry. Co. v. Wright, 207 U. S. 127.