p. 223HURLEY v. COMMISSION OF FISHERIES OF VIRGINIA ET AL.Syllabus
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF VIRGINIA.Argued October 10, 11, 1921.Decided December 5, 1921.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.
For a fuller statement of the case see the report, of the case below.
Mr. Thomas B. Snead and Mr. S. S. P. Pat tesón, with-whom Mr. Herbert T. Lewis and Mr. Thomas J. Downing were on the brief, for appellant.
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.
p. 225owners 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 .
Mr. Robert W. Shultice, with whom Mr. J. D. Hank was on the brief, for appellees.
delivered the opinion of the court.
Appellant sought a temporary injunction restraining the Virginia Commission of Fisheries from removing the stakes and marks which designated the boundaries of certain oyster grounds in the Rappahannock River, planted by him and which he claimed the right to occupy, and thereby opening the same for public use and enjoyment.
He maintained that the Commission was proceeding under a state statute invalid because it. failed to provide for proper notice and hearing and that the proposed action would deprive him of property without due process of law contrary to the Fourteenth Amendment.
A majority of the three judges composing the court below concluded— 264 Fed. 116 —that the Commission had acted in substantial compliance with the challenged statute, that whatever rights of property appellant claimed in respect of the specified lands, or the oysters thereon, were necessarily based upon the statute itself and that he could not both assail it and rely upon it in the same proceeding. Kansas City, Memphis & Birmingham R. R. Co. v. Stiles, 242 U. S. 111 , 117. And further that the evidence showed conclusively that the threatened
p. 226action would not deprive him of any property which he could rightfully claim. It accordingly refused to grant a temporary injunction but did not dismiss complainant’s bill. We find no reason to interfere with this decree and it is affirmed.
Affirmed.
Mr. Justice Clarke concurs in the result.