Chap. 422.—-An ACT to amend sections 1257, 1258, 1259, 1260, 1261, 1262. 1263.
1264 and 1265, relating to licensing, bonding, and regulating commission mer-
chants, and punishment for violations. Sections 1257, 1258, 1260, 1261, 1264
and 1265, having been heretofore amended. [S B 3]

Approved March 23, 1928

1. Be it enacted by the general assembly of Virginia, That sections
twelve hundred and fifty-seven, twelve hundred and fifty-eight, tweive
hundred and sixty, twelve hundred and sixty-one, twelve hundred and
sixty-four and twelve hundred and sixty-five, as amended, and twelve
hundred and fifty-nine, twelve hundred and sixty two and twelve hun-
dred and sixty-three, be amended and re-enacted so as to read as
follows:

Section 1257. Definitions as used in the following sections of this
chapter.—The term “commission merchant” shall include every person,
firm, exchange, association or corporation who shall receive farm
produce for sale on commission, or contract with the producer thereof
for farm products to be sold by him or it on commission, or accept in
trust from the producer thereof for the purpose of resale, or who
shall sell or offer for sale on commission or shall solicit consignments
of any kind of farm products, or who shall in any way handle for the
account of or as an agent of the producer thereof any kind of farm
products ; provided that any person, firm or corporation shall be deemed
to be an agent of the producer. unless a specific price has been agreed
upon by both parties before shipment.

The term “farm products” or “farm produce” shall include all
agricultural, horticultural, viticultural and vegetable products of the
soil, poultry and poultry products, live stock and live stock products,
dairy products, game, fur, nuts and honey; but shall not include
timber and timber products, floricultural products, tea, coffee or peanuts ;
or cotton when sold under the supervision of a chartered exchange.

The term “consignor” or “consignors,” shall include every person,
firm, exchange, association or corporation who shall ship or deliver to
any commission merchant any farm products.

The term “commission merchant” shall not include any co-operative
organization, operating under and by virtue of the laws of the State
of Virginia or of any other State or the District of Columbia, or
under federal statutes, or the agents, individual or corporate, of such
organization in the performance of their duties as such agents; except
as to that portion of the activities of such organization or agent, as
involves the handling or dealing in the farm products of non-members
of such organization; or to any person, firm, exchange, association or
corporation buying vegetables and/or horticultural farm products for
the purpose of reselling the same in dried, canned or other preserved
form; nor shall it include the sale of farm produce at public auction
by a duly licensed auctioneer, acting as the agent of another to whom
such farm produce shall have been consigned; nor to the sale by
sheriffs, constables and other officers and fiduciaries and court officials ;
nor to seeds sold at retail.

Section 1258. Application for license——It shall be unlawful for any
person, firm, exchange, association or corporation to act as a commis-
sion merchant without first obtaining a license as herein provided.
Application for license hereunder shall be made to the commissioner
of agriculture and immigration of this State in writing, signed and
sworn to by the applicant. Said application shall state the name of
city or town where the business of commission merchant is to be con-
ducted, the street and number of the building if practicable, the char-
acter of the products which will be handled by the applicant; and if
made by a co-partnership, the full names of each of the partners com-
prising the co-partnership, and their respective addresses, together
with the firm or trade name under which the business is to be con-
ducted ; and if made by a corporation the application shall state whether
domestic or foreign, the amount of its capital stock as provided in its
articles of incorporation, the amount of its capital stock fully paid in,
and the names of its officers together with the name or names of such
person or persons authorized to receive and accept service of sum-
mons and legal notices of all kinds for the applicant. Such applicants
shall further satisfy, upon demand, the commissioner of agriculture
and immigration of his or its character, responsibility and good faith
in seeking to carry on a commission merchant’s business within this
State.

All applications shall be accompanied by a license fee of ten
($10.00) dollars, and a good and sufficient bond in the sum of three
thousand ($3,000.00) dollars, which shall entitle the applicant to a
license to expire on December thirty-first, next following. Upon the
application accompanied by evidence of payment of renewal premium
continuing the bond herein required in full force and effect, and the
payment of a fee of ten dollars on or before the first day of January
following the date of expiration: of any license hereunder issued the
applicant shall be entitled to renewal license to expire one year from the
date of expiration of the old license. All applications for renewal
licenses shall be made in the same manner as application for original
license. All sums received by the commissioner of agriculture and
immigration for such license fees shall be paid into the State treasury
to be appropriated solely for the purpose of carrying out the provisions
of this law.

Section 1259. Bond.—The bond herein referred to shall be executed
by the applicant as principal and by a surety company qualified and
authorized to do business in this State as surety. Said bond shall be
conditioned upon compliance with the provisions of this law and upon
the faithful and honest handling of farm products in accordance with
the terms of this law. Said bond shall be to the Commonwealth of
Virginia in favor of every consignor of farm products. Any con-
signor of farm products claiming to be injured by the fraud, deceit
or negligence of any commission merchant may bring action therefor
upon said bond against either the principal, or the surety, or both in
any court of competent jurisdiction to recover the damages caused by
such fraud, deceit or negligence, or the failure to comply with the
provisions of this law, or to make prompt and accurate settlement with
such consignor.

The applicant shall file with the commissioner of agriculture and
immigration at the time of furnishing the said bond a schedule of his
maximum commissions and charges for service in connection with
the produce handled on account of or as agent for the parties and
such designated commission and charges shall not be changed or
varied for one year thereafter, except by and through a written con-
tract and agreement between the commission merchant and the con-
signors of farm products.

Section 1260. Powers of commissioner of agriculture and immigra-
tion.—For the purpose of enforcing the provisions of this law, the
commissioner of agriculture and immigration is authorized to receive
verified complaints against any commnssion merchant or any person,
firm, exchange, association or corporation assuming or attempting
to act as such, and upon receipt of such verified complaint shall have
full authority to make or have made by his duly authorized agent or
agents any and all necessary investigations relative to the said com-
plaint, and he or his duly authorized agent or agents shall have at all
times free and unimpeded access to all buildings, yards, warehouses,
storage and transportation facilities in which any farm products are
kept, stored, handled or transported. He or his duly authorized agent
or agents shall have full authority to administer oaths and take testi-
mony thereunder, to issue subpoenas requiring the attendance of wit-
nesses before him or his agents, together with all books, memoranda,
papers, and other documents, articles or instruments ; to compel the dis-
closure by such witnesses of all facts known to them relative to the
matters under investigation, and all parties disobeying the orders
or subpoenas of the said commissioner, or his duly authorized agent
or agents, shall be guilty of contempt and shall be certified to any
court of competent jurisdiction for punishment for such contempt.
Copies of records, inspection certificates, certified reports and all
papers on file in the office of the commissioner of agriculture and
immigration shall be prima facie evidence of the matters therein con-
tained.

Upon the verified complaint of any interested party the commis-
sioner of agriculture and immz:gration or his duly authorized agent or
agents must, or on his own motion may, investigate any transaction
involving solicitation, receipt, sale or attempted sale of farm products
by any person or persons acting or assuming to act as a commission
merchant; failure to make proper and true account of sales and settle-
ment thereof as in this act required; the intentional making of false
statements as to condition, and quality of any farm products received
or in storage; the intentional making of false statements as to market
conditions; the failure to make payment for farm products within
the time required by this law; or any other injurious transactions. And
in furtherance of such investigation or inspection, the commissioner
of agriculture and immigration, or any authorized representative, may
examine that portion of the ledger, books, accounts, memoranda and
other documents, farm products, scales, measures, and other articles
and things used in connection with the business of such commission
merchant relating to the transaction involved. When a consignor of
farm products shall have produced evidence of having filed complaint
with the consignee within ninety days after date of sale, and evidence
of failure to obtain settlement satisfactory in any transaction after
having notified the consignee, then a verified complaint may be filed
with the commissioner of agriculture and immigration, who shall under-
take to effect settlement, and in the event that he shall fail to effect
settlement, he shall cause a copy of such complaint, together with a
notice of a time and a place of hearing of such complaint, to be served
personally or by mail upon such commission merchant. Such service
shall be made at least ten days before the hearing, which shall be held
in the city or town in which is situated the place of business of the
licensee, or in which the transaction complained of is said to have
occurred. At the time and place appointed for the hearing the com-
missioner of agriculture and immigration, or his agents, shall hear the
parties to such complaint and shall enter in the office of the said com-
mussioner at Richmond a decision either dismissing such complaint or
specifying the facts established at such hearing. A copy of such
decision shall be furnished to each, every and all the respective parties
thereto.

Section 1261. Granting and revoking licenses——The commissioner
of agriculture and immigration may refuse to grant a license, or may
revoke any license already granted, as the case may be, when he shall
be satisfied of the existence of any of the following causes:

(a) Where a money judgment has been entered against such com-
mission merchant and upon which execution has been returned unsatis-
fied.

(b) Where false, fraudulent or improper charges or returns have
been made by the licensee, for the handling, sale or storage of, or
for rendering of any service in connection therewith.

(c) Where the licensee has failed or refused to render a true
account of sales, or to make settlement thereon promptly and within
the time and in the manner required by this law.

(d) Where the licensee has knowingly made false or misleading
statements as to the condition, quality, and quantity of farm products
received, handled, stored or held by him for sale on commission.

(e) Where the licensee has made false or misleading statements
as to market conditions with intent to deceive.

(f) Where there has been combination or combinations to fix prices,
or where the licensee, has directly or indirectly, purchased for his, or
its own account farm products received by him or it, upon consignment.
without prior authority from consignor in writing and at a price agreed
to fixed by the consignor; provided, however, that this shall not apply
to tobacco warehousemen, when the consignor or owner is present in
person at the sale of his tobacco, or represented by a duly authorized
agent.

(g) Where the licensee has made fictitious sales or has been euilty
of collusion to defraud the consignor.

(h) Where the licensee, to whom any farm products have heen
consigned, reconsigned such farm products to another commission
merchant, person, firm, exchange, association or corporation, either in
the city or town in which is located the licensee, or to some other point
within or without the State of Virginia, unless consent of the con-
signor has been first obtained and in writing, or notice given in writing
to the consignor by the consignee that all or a part of such shipment
Was reconsigned.

(1) Where the licensee, sells farm products consigned to him or it
to another person, firm, exchange, association or corporation owned o1
controlled by him or it, or in which such licensee may be interestec
financially or otherwise either directly or indirectly, unless notice i:
given, In writing, to the consignor by the commission merchant tha’
all or a part of such shipment was sold to a person, firm or corporatior
in which he or it is financially interested.

(j) Where the licensee was intentionally guilty of fraud or decep
tion in the procurement of such license.

(k) Where the licensee has failed or refused to file with th
commissioner of agriculture a schedule of his maximum commission
and other charges for services in connection with the produce handlec
on account of or as agent of another as prescribed in this act, prior t
the first day of February of each year.
(1) Where a license shall have been revoked, the commissioner of
agriculture and immigration shall cause to be published in one or more
daily papers to be selected by him, once a week for two successive
weeks, the fact of such revocation and the cause therefor, and also
in the next issue of the agricultural bulletin issued by the said com-
missioner.

Section 1262. Right of appeal—Any action of the commissioner of
agriculture and immigration in refusing to grant a license, or in revok-
ing a license already granted to such commission merchant or mer-
chants, or refusing to renew a license, shall be subject to the right
of appeal within thirty days after such decision of the commissioner,
to the circuit court of the city of Richmond, which shall hear and
determine the matter de ‘novo so presented to it, making such orders
pending such proceedings as it may deem proper to preserve the rights
of the parties in interest.

Section 1263. Report of sale to consignor; keeping of records,
et cetera.—It shall be the duty of every commission merchant, having
received any farm products for sale on commission, to promptly make
and keep a correct record, showing in detail the following with refer-
ence to the handling, sale, or storage of such farm products:

(a) The name and address of the consignor;

(b) The date received;

(c) The condition and quantity on arrival;

(d) The date of such sale for the account of the consignor ;

(e) The price for which sold;

(f) An itemized statement of the charges to be paid by the con-
signor in connection with the sale:

(g) Each consignment of farm products shall be given a lot number
or other identifying mark, which number or mark shall appear on all
sales tags or tickets and/or on any other essential records needed to
show what the products actually sold for;

(h) A detailed statement shall be kept on file of the filing of any
‘laim or claims which have or may be filed by the commission merchant
igainst any person, firm, exchange, association or corporation for over-
charges or for damages resulting from the injury or deterioration of
uch farm products by the act or acts, or neglect, or failure of such
verson, firm, exchange, association or corporation, and such records
hall be open to the inspection of the commissioner of agriculture and
mmigration and the consignor or consignors of farm products for
vhom such claim or claims are made; provided that the money returns,
f any, collections, or damages received by said commission merchant
tom said persons, firms, exchanges, association or corporation for and
n behalf of consignor or consignors of farm products by reason of
aid over-charges, damages, or deterioration shall forthwith be paid
o the aforesaid consignor or consignors of farm products, less charges
or collection thereof in accordance with the schedule of charges
‘led under section twelve hundred and fifty-nine of this act. A copy
§ the record and account of sales of farm products together with
remittances in full of the amount realized by such sales, less the agreed
commissions and other charges, shall be delivered to the consignor upon
the consummation of the sale together with all monies received by
him in payment for any consignment of farm products, less the agreed
commission and other charges, within ten days after receipt of said
monies by said commission merchant, unless otherwise agreed in writ-
ing; provided, however, that the names and addresses of purchasers
need not be given unless demanded in cases of complaint.

It shall also be the duty of every commission merchant to retain a
copy of all records, including sales tags or tickets, account of sales.
and other records covering each transaction, for a period of one hun-
dred and twenty days from the date thereof, which copy shall at all
times be available for, and open to, the confidential inspection of the
commissioner of agriculture and immigration, or his duly authorized
agents, and the interested consignor, or any authorized representative
of either. In the event of any dispute or disagreement between a con-
signor and a commission merchant arising at the time of delivery as
to condition, quality, grade, pack, quantity or weight of any lot, ship-
ment or consignment of farm products, it shall be the duty of the com-
missioner of agriculture and immigration to furnish, upon the payment
of the actual necessary expenses therefor, to be paid by requesting
party, a certificate establishing the condition, quality, grade, pack,
quantity or weight of such lot, shipment or consignment; such certificate
shall be prima facie evidence in all courts of this State as to the
recitals thereof at the time such inspection was made. The burden of
proof shall be upon the commission merchant to prove the correctness
of his accounting as to any transaction which may be questioned.

Section 1264. Offenses: how punished—Any person, firm, ex-
change, association or corporation who shall assume or attempt to act
as a commission merchant as defined by this act without license, or
any person, firm, exchange, association or corporation, who being a
commission merchant and duly licensed, shall,

(a) Impose false charges for handling or for services in connec-
tion with farm products, or

(b) Fails to account promptly, correctly, fully and properly and to
make settlement therefor as in this act provided, or

(c) Make false and misleading statements as to market conditions
with intent to deceive, or

(d) Make fictitious sales or shall be guilty of collusion to defraud
the consignor, or enter into any combination or combinations to fix
prices, or

(ec) Directly or indirectly purchase for his or its own account.
farm products received by him or it on consignment without prior
authority from the consignor in writing; provided, however, that this
shall not apply to tobacco warehousemen, when the consignor or
owner 1S present in person at the sale of his tobacco, or represented by
a duly authorized agent, or

(f) Intentionally make false statement or statements as to grade,
condition, markings, quality or quantity of farm products shipped or
packed in any manner, or

(g) Reconsign such farm products as have been consigned to him
or it to another commission merchant, person, firm, exchange, associa-
tion or corporation, either in the city or town in which the licensee is
located, or to some other point within or without the State of Virginia,
unless consent of the consignor has been first obtained and in writing,
or notice given in writing to the consignor by the consignee that all or
a part of such shipment was reconsigned, or

(h) Sell such farm products consigned to him or it, to another
person, firm, exchange, association or corporation owned or controlled
by him or it, or in which such licensee may be interested financially or
otherwise, either directly or indirectly, unless notice is given, in writing,
to the consignor by the commission merchant that all or a part of such
shipment was sold to a person, firm or corporation in which he or it
is financially interested, or

(1) Be intentionally guilty of fraud or deception in the procure-
ment of such license, or

(j) Fail or neglect to give written notice immediately to the com-
missioner of agriculture and immigration and the surety on the bond
of such commission merchant, of any changes or alterations in the
style, name or personnel of the person, firm, exchange, association or
corporation to whom such license has been issued, or

(k) Fail to comply in every respect with the provisions of this
act: shall be guilty of a misdemeanor and upon conviction thereof,
shall be punished by a fine of not less than twenty-five dollars and
1ot to exceed one thousand dollars, or by confinement in the city or
‘ounty jail for not more than one year, or both such fine and im
risonment, in the discretion of the court or jury trying the case.

It is hereby made the duty of the several Commonwealth’s attorneys
f this State to prosecute all violations of this act subject to prosecu-
on in their respective counties. Civil suits and criminal prosecutions
rising by virtue of this act or any of its provisions may be commenced
id tried in either the county where the products were received by the
mmission merchant, or within the city or county in which the
rincipal place of business of such commission merchant is located
ithin the State of Virginia, or within the city or county in which the
olation occurred.

Section 1265. Employment of assistants: adoption of rules and reg-
lations, etc—The commissioner of agriculture and immigration is
ereby empowered, subject to the approval of the State board of agri-
wlture and immigration, to employ such persons as may be necessary
ind to adopt all needful rules and regulations for the enforcement of
Ke gravisions of this act and for the collection of all fees herein pre-
scribed. All expenses incident to the enforcement of this act shall be
gaid from such funds as may be appropriated for this purpose and in

such manner as may be prescribed by law. ‘This act shall become effec-
tive on and after January first, nineteen hundred and twenty-nine. All
acts and parts of acts in conflict with this act are hereby repealed.