CHAPTER 133

AN ACT to create the Potomac River Oyster Commission; to pro-
vide for the appointment, terms, and compensation of the mem-
bers thereof, to prescribe their powers and duties; to permit
the use of certain devices to take oysters; to provide penalties ;

and to repeal certain acts.
[H 3]

Approved March 9, 1950

3e it enacted by the General Assembly of Virginia:
1. § 1. Potomac River Oyster Commission; creation, appointments
and removal.—(a) The Potomac River Oyster Commission, herein-
after referred to as Commission, is hereby created. The Commission
shall be composed of six members, three of whom shall be from
Virginia and three of whom shall be from Maryland, all to be
appointed as follows:

One of the members from Virginia shall be the Commissioner of
Fisheries and the other two shall be appointed by the Governor of
Virginia; of the two latter members one shall be a resident of
a county or city bordering on the Potomac and the other shall be
elected from the State at large. Of the three members from
Maryland one shall be the officer holding the office comparable to
that held by the Commissioner of Fisheries of Virginia; the other
two members shall be appointed by the Governor of Maryland and
one of such members shall be a resident of a county or city border-
ing on the Potomac and the other shall be selected from the State
at large. In making the original appointments each Governor
shall appoint one member for a term of two years and the other
for four years. Subsequent appointments, except to fill a vacancy
caused by resignation, health or removal shall be for terms of four
years.

(b) The chairmanship of the Commission shall annually alter-
nate between the respective Commissioners of Fisheries of the two
States. If the Commission does not agree as to who shall serve
first the two Commissioners shall draw lots to determine which of
them shall first serve as chairman and thereafter the chairmanship
shall alternate between the two Commissioners.

(c) No action of the Commission shall be valid or enforceable
unless at least two members from each State concur therein.

§ 2. Jurisdiction and authority.—The Commission shall have
complete and exclusive jurisdiction over the waters of the Potomac
River in so far as is necessary to administer and enforce the pro-
visions of this act and all other acts that may heretofore or here-
after be enacted by the States of Maryland and Virginia for the
conservation of oysters in such river. The Commission shall have
the power to adopt and enforce such administrative rules and
regulations as may be necessary to carry out the provisions of this
act, anything in any other law, either specifically or by implication,
to the contrary notwithstanding. <A copy of any rule or regulation
adopted by the Commission, the violation of which may have the
effect of subjecting a person to prosecution, shall be posted by an
enforcement officer or deputies in three or more public places in
each county or city whose shores adjoin the Potomac River for at
least ten days before such rule or regulation shall have the full
force and effect of law; and a certificate of such officer or deputy
showing that the same has been posted shall be conclusive evidence
thereof. Except as otherwise provided in this act, all of the pro-
visions of existing laws not in conflict with the provisions of this
act shall continue to be in full force and effect.

§ 2a. Appeals.—(a) Any person who is aggrieved by any
decision or order resulting from any hearing conducted by the
Commission in acordance with law, shall have the right of appeal to
any court of record of the county or city in which he resides,
provided that such appeal is taken within sixty days from the
date of the rendering of such decision or order.

(b) The appeal shall be by petition against the Commission as
defendant alleging therein in detail the decision or order complained
of, the objections thereto, and specifying the relief asked, and upon
filing of the petition for appeal the clerk of the court shall issue
a summons returnable in thirty days.

On or before the return date of such summons, the Commission
may file its plea, demurrer or answer to the allegations contained
therein. Upon filing of its pleadings by the Commission the cause
shall be matured for hearing in court without further pleadings,
nd, upon application of either party, the cause shall be placed at
ie head of the docket and heard forthwith.

(c) The Commission shall, on or before the return day of such
ummons, certify to and file, in the court wherein such appeal is
nstituted, the record of the proceedings to which the petition
efers. Such record shall include the testimony taken therein, the
indings of fact of the Commission, a copy of all orders made by
the Commission pertaining to the proceedings, and a copy of the
der, action or decision of the Commission which the petition
calls upon the court to review.

(d) Mere technical irregularities in the procedure of the Com-
mission shall not be the basis of the decision of the court. In an
appeal from an order or decision of the Commission, the case shall
be heard upon the record certified to the court by the Commission.
Additional testimony shall not be taken before the court, except
to clarify the record or to introduce evidence as to the effect of
the order. No part of the record, containing verbal or docu-
mentary evidence, shall be disregarded by courts because of tech-
nical rules of evidence.

(e) Upon the filing of the appeal an order may be entered on the
chancery side, summoning the Commission to appear on a day
fixed therein to demur, plead or answer to the allegations of the
petition, and on the return day, the cause shall be matured and set
for hearing at the head of the docket. Upon the hearing, the court
shall determine whether the order appealed is within the discretion
vested in the Commission by law, and if so, whether the Commis-
sion has exercised a reasonable discretion or the order is unreason-
able and capricious. If the Commission is found to be without
authority of law to enter the order complained of, or that it was
unreasonable and capricious, the court shall enter an order declar-
ing the order of the Commission null and void. Where the appeal
is from a finding of fact, the order of the Commission shall be given
weight of a jury on a fact found. If the court finds that the
findings of fact are not sustained by the evidence, the court may
either declare such findings of fact void or remand the cause to the
Commission for further proceedings.

(f) No appeal from the decision of the court of record shall be
allowed and such court shall have authority to assess costs upon
either party, or to apportion such costs between the parties.

§ 3. Expenditures and appointments.—The Commission is
hereby empowered to incur such expenses and to appoint such
administrative employees and enforcement officers and at such
salaries as may be provided by either or both States. Neither State
shall be compelled to expend on behalf of the Commission more
than the maximum amount expended by the other State but each
State shall provide sufficient funds to equal the funds provided by
the other State. All such employees and officers for whom provision
is made by the State of Maryland, except members of the Com-
mission, shall be chosen according to and be subject to all of the
provisions of Article 64A of the Annotated Code of Maryland (1949
Supplement). All such employees and officers for whom provision
is made by the State of Virginia, except members of the Commission,
shall be chosen and shall hold office under the same provisions of
law which apply to employees of the Virginia Commission of
Fisheries.

The members of the Commission who are not eligible to serve
as chairman shall be paid a per diem of twenty five dollars and
expenses for each day engaged in the work of the Commission to
be paid from funds provided by law. However, the members of
the Commission who are eligible to serve as chairman shall re-
ceive no extra compensation.

Enforcement officers appointed by the Commission shal] have
the same authority as enforcement officers of the Maryland Tide-
water Fisheries Commission and of the Virginia Fisheries Com-
mission. ,

§ 4. Issuance of licenses.—The Commission, upon application
therefor, shall issue licenses permitting such handscraping, hand
dredging or shaft tonging within the limits of the Potomac River
as specified in this act, to any citizen of Maryland or Virginia
upon the production of proof satisfactory to the Commission that
the applicant for such license has actually resided in either State
for a period of one year. The licenses so issued shall be valid for
the duration of only one oyster season and the Commission shall
have the authority to fix fees to be charged for such licenses. Pro-
vided, that the minimum fee for a license permitting handscraping
and hand dredging shall be fifteen dollars and the minimum fee
for a license permitting only shaft tonging shall be five dollars.
It shall be unlawful for any person to take oysters within the limits
of the Potomac River, as specified in this act, with a handscraper,
hand dredge or shaft tong unless such person has been issued a
license as set forth herein and unless such license is, at the time
of the taking of such oysters, valid and subsisting. Any person
found guilty of violating this section shall be subject to the penal-
ties provided by § 5 hereof.

§ 5. Jurisdiction and penalties—Any citizen of either State
who violates the laws which the Commission is empowered to en-
force shall be considered guilty of violating the laws of the State
of which he is a citizen and shall be prosecuted according to such
laws in the appropriate court in his State. Any person not a citi-
zen of the State of Maryland or Virginia who violates any of the
provisions of the laws which the Commission is empowered to en-
force may be tried and punished in either State by the Courts hav-
ing jurisdiction over such violations. Any person who violates any
of the provisions of the laws which the Commission is empowered
enforce shall be fined for each such violation not less than one
ndred dollars nor more than five hundred dollars for the first
ense, and not less than two hundred dollars nor more than one
ousand dollars for the second and each subsequent offense. Pro-
ied, that no person shall be deemed to be a second or subsequent
fender if such person has not been fined within a period of three
ars for violating any of the laws which the Commission is em-
powered to enforce. Furthermore, a third conviction within a
eriod of three years shall operate as a revocation of the license
f such convicted person‘and the court shall upon such conviction
equire the guilty party to forthwith surrender his license and shall
otify the Commission of its action. No license thus revoked shall
iain be issued to such an offender until such a time as may be
jetermined by the Commission. In addition, all oysters taken in
violation hereof shall be forfeited to the Commission and disposed
of as it deems proper.

§ 6. All acts and parts of acts in conflict herewith are re-

pealed to the extent of such conflict. Provided, however, that
nothing herein shall be deemed to alter, amend, abridge or repeal
any of the provisions of the Compact of March 28, 1785.
2. An emergency existing, this act shall become effective upon
passage, provided the State of Maryland has enacted similar legis-
lation, or when the State of Maryland does enact similar legisla-
tion, and shall remain effective so long as similar legislation exists
in both States. Provided further, however, that under no circum-
stances shall this act become effective until the State of Maryland
has adopted legislation similar to all of the acts relating to the
conservation of oysters in the Potomac River which the Potomac
River Oyster Commission has been empowered to administer and
enforce by legislation adopted by this session of the General
Assembly of Virginia.