CHAPTER 52

An Act to create the Potomac River Oyster Commission; to provide for
the appointment, terms, and compensation of the members thereof,
and to prescribe their powers and duties; to authorize the Commis-
sion to adopt and enforce certain rules and regulations; to provide
for certain hearings and appeals; to provide for licensing of the use
of certain devices for the taking of oysters in the waters of the
Potomac; to limit the use thereof; to authorize the Commission to
close certain areas to the taking of oysters; to authorize the reshell-
ing and reseeding of such areas, and to authorize the procedure
therefor; to provide a season for the taking of oysters; to character-
ize certain acts as being in violation of certain laws; to provide for
the culling of oysters; to levy and provide for the collection of taxes
on certain oysters; to provide how such tax shall be enforced; to
provide for the distribution of funds derived from certain tazes,
fines, and penalties; to prohibit certain acts; to provide penalties for
violations; to repeal certain acts; to provide for the effect of this
act under certain conditions; and, to provide when the act shall take

effect.
(H 7]

Approved February 18, 1952

Be it enacted by the General Assembly of Virginia:

1. § 1—(a) The Potomac River Oyster Commission, hereinafter re-
ferred 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:

The three members from Virginia shall be the Commissioner of Fish-
eries and two other persons appointed by the Governor from the member-
ship of the Commission of Fisheries, all for terms coincident with their
terms as members of the Commission of Fisheries.

The three members from Maryland shall be the members of the
Department of Tidewater Fisheries of Maryland who shall serve on the
Potomac River Oyster Commission for terms coincident with their terms
as members of such Department.

(b) The chairmanship of the Commission shall annually alternate
between the Commissioner of Fisheries of Virginia and the chairman of
the Department of Tidewater Fisheries of Maryland. 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 there-
after 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.—The Commission shall have complete and exclusive jurisdiction
over the waters of the Potomac River in so far as is necessary to admin-
ister and enforce the provisions of this act and all other acts that may
heretofore or hereafter be enacted by the States of Maryland and Vir-
ginia for the conservation of oysters in such river. The Commission shall
have the power to adopt and enforce such administrative rules and regu-
lations as may be necessary to carry out the provisions of this act, any-
thing in any other law, either specifically or by implication, to the con-
trary 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 depu-
ties in three or more public places in each county or city whose shores
adjoin the Potomac River for at least twenty 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.

If within such twenty days, subsequent to the posting of any such
rule or regulation ten or more persons affected thereby sign a petition,
directed to the Commission, requesting a hearing on such rule or regula-
tion, the Commission shall set a time and place in or near the area
affected for a hearing thereon. Notice shall be sent the petitioners by
mail. At the time and place set for the hearing the Commission shall hear
all persons desiring to present any matter bearing on the rule or regula-
tion at issue. If as a result of such hearing the Commission deems it desir-
able to amend the rule or regulation, whether proposed or adopted, it
shall proceed to do so and post the same as in the case of an original rule
or regulation or amendment thereto. Copies of all rules and regulations
adopted by the Commission, when final, shall be filed in the clerk’s office
of each county in Maryland and Virginia bordering on the Potomac River.

Except as otherwise provided in this act, all the provisions of
existing laws not in conflict with the provisions of this act shall continue
to be in full force and effect.

§ 3.—(a) Any person who is aggrieved by any decision or order
resulting from any hearing conducted by the Commission in accordance
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 thirty 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 return-
able 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, and, upon application of
either party, the cause shall he placed on the docket and promptly heard.

(c) The Commission shall, on or before the return day of such
summons, certify to and file, in the court wherein such appeal is insti-
tuted, the record of the proceedings to which the petition refers. Such
record shall include a transcript of any testimony taken therein or an
agreed statement thereof, the findings of fact of the Commission, a copy
of all orders made by the Commission pertaining to the proceedings, and
a copy of the order, action or decision of the Commission which the peti-
tion calls upon the court to review.

(d) Mere technical irregularities in the procedure of the Commission
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 documentary evidence, shall be disregarded by courts
because of technical rules of evidence.

(e) Upon the filing of the appeal an order may be entered, summon-
ing 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 on the docket and promptly heard.
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 Commission has exercised a reasonable discretion or the order
is unreasonable and capricious. If the Commission is found to be without
authority of law to enter the order complained of, or that it was unreason-
able and capricious, the court shall enter an order declaring 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) An appeal from the decision of the court shall be allowed either
party to the highest court in the State in which the court from which the
appeal is taken is located and such court shall have authority to assess
costs upon either party, or to apportion such costs between the parties.

§ 4.—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. Each State shall
provide funds or services substantially equal to the funds or services
provided by the other State. All such employes 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 provi-
sions of Article 64A of the Annotated Code of Maryland (1949 Supple-
ment). 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 Attorney Gen-
eral of each State shall be the legal advisor for the Commission.

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 shall be paid all mem-
bers of the Commission, from funds provided by law. However, the
members of the Commission who are eligible to serve as chairman shall
receive no extra compensation.

Enforcement officers appointed by the Commission shall have the
same authority as enforcement officers of the Maryland Tidewater Fish-
eries Commission and of the Virginia Fisheries Commission.

§ 5. The Commission, upon application therefor, shall under such
conditions as to the fitness of the applicant as it deems proper issue licenses
permitting such handscraping, hand dredging or shaft tonging within the
limits of the Potomac River, exclusive of its tributaries 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. In the event of denial of such license
or licenses to any person applying therefor, such applicant shall be entitled,
upon his request, to a hearing thereon before the Commission, from which
decision the applicant shall be entitled to an appeal as provided herein for
appeals from an order or decision of the Commission. The licenses so issued
shall be valid for the duration of only one oyster season and the Commis-
sion shall have the authority to fix fees to be charged for such licenses.
Provided, that the fee for a license permitting handscraping and hand
dredging shall be not less than fifteen dollars and not more than twenty-five
dollars and the fee for a license permitting only shaft tonging shall be not
less than five dollars and not more than ten dollars. Any person licensed to
tong oysters in the water of his State shall be credited with the fee paid
thereon as though such fee had been a payment on the fee herein required
and upon payment of the difference between fee required by the State and
the fee required herein, if the latter be larger, shall be entitled to a license
as though he had paid the entire fee to the Commission. It shall be unlaw-
ful for any person to take oysters within the limits of the Potomac River,
exclusive of its tributaries, with a handscraper, hand dredge or shaft tong
or any other type of gear 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 penalties provided by § 14 hereof.

§ 6. Any person who violates any provision of this act or any rule
or regulation adopted hereunder shall be considered guilty of violating
the laws of the State whose officer arrested him and shall be prosecuted
according to such laws in the appropriate court of the State of the arrest-
ing officer.

§ 7. A tax of not less than ten cents nor more than twenty cents
per standard bushel of oysters as set by the Commission is hereby levied
on each such bushel of oysters taken from the Potomac River under a
license issued by the Commission. Such tax shall be paid by the licensee,
ana the buyer of such oysters shall be liable for the collection thereof and
the payment to the Commission, but both shall not be liable. The Com-
mission shall provide for the collection of such tax.

§ 8. After due notice and a hearing by the Commission, the license
of any person who is liable for the payment of such tax may be revoked
for failure or refusal to pay such tax. Each such revocation shall be for
a period to be fixed by the Commission. In addition to such revocation,
legal action may be instituted by the Commission, through counsel of its
own choice or through the attorney charged by law with enforcement of
the laws relating to the Fisheries Commission of the State in the place of
residence of the defendant, for the collection of any such tax in arrears
and no license shall be issued to any person who is in arrears as to such
tax. It shall be unlawful to fail or refuse to pay the tax levied hereby and
violations shall be subject to the penalties herein provided.

§ 9. The Commission is authorized to adopt such rules and regula-
tions as are necessary to provide for the collection of the tax hereby
imposed and all such rules and regulations so adopted shall be reproduced
and sent each licensee of the Commission and given such other publicity
as the Commission deems proper. The Commission is specifically author-
ized to prohibit the indiscriminate selling and buying of oysters on the
Potomac River and if it so provides it shall specify a minimum of five
points at which oysters therefrom may be sold or bought. It shall be
unlawful to buy or sell any such oysters at any place other than one
designated by the Commission.

10. Each person buying or selling oysters taken from the Potomac
River shall keep such reasonable records as the Commission may specify
and as will enable the tax due to be ascertained and collected. It shall be
unlawful to fail or refuse to keep the records required by the Commission
and violations shall be punished as herein provided.

§ 11. The Commission shall have complete authority to reshell and
reseed any bar or area within its jurisdiction for the purpose of the propa-
gation, preservation and growth of oysters and to establish reasonable
rules and regulations with regard to the taking of oysters from such bars
or areas after they have been reshelled or reseeded. The taking of
oysters in violation of such rules and regulations shall subject the person
so violating to the penalties set forth in § 14 hereof. Likewise, the Com-
mission may, at any time and for such periods as it may determine neces-
sary to carry out such purpose, close any bar or area within its jurisdiction
to the use of any particular gear or to any oystering, provided it shall have
been determined first, by actual inspection, that continued taking of
oysters from such bar or area would unduly deplete the supply of oysters
thereon. No bar or area shall be closed by the Commission without due
notice thereof being given in at least two newspapers having general circu-
lation in the counties of each state bordering on the Potomac River. Such
notices shall specify the bar or area to be closed and set a date for the
closing thereof. Upon the signing of a petition by at least twenty oyster-
men licensed by the Commission and the filing thereof if not more than
ten days after such bar or area has been closed, the Commission shall
conduct a hearing at which any interested person may appear for the
purpose of presenting evidence to prove that the continued taking of
oysters from such bar or area would not deplete the supply of oysters
thereon. It shall be unlawful to take oysters from any such bar or area
while it is closed by order of the Commission and the taking of oysters in
violation of any such order shall subject the person so violating to the
penalties set forth in § 14 hereof.

§ 12. The taking of oysters within the limits of the Potomac River,
exclusive of its tributaries, over which Maryland and Virginia exercise
concurrent fishing rights by virtue of the Compact of March 28, 1785,
shall be lawful from and including the first day of November of each year,
to but not including the first day of March of the following year, if so
licensed by the Commission, if done by the methods generally known as
handscraping, hand dredging or shaft tonging or otherwise as herein
permitted; provided, that the Commission shall have authority to vary
the opening and closing of the season by not to exceed two weeks in either
direction; and provided further, that such handscraping, hand dredging
or shaft tonging may only be done by and with any device operated by
hand, which shall include the optional use of hand winders. The length
and spacing of teeth in any such device shall conform to regulations
adopted by the Commission within reasonable limits for the taking of
oysters. The use of the device generally known as a “diver” is hereby
permitted. No device used to take oysters under this act except shaft tongs
shall measure more than thirty inches from the outside tooth of the scrape,
or dredge, bar to the other outside tooth of such bar. It shall be unlawful
for a boat to have more than one handscrape or hand dredge aboard at any
time, nor shall there be aboard any boat within the above specified limits
of the Potomac River at any time any dredge, or scrape, which exceeds,
or does not conform to the requirements of this act or to the regulations
of the Commission. It shall be unlawful for any boat, within the limits
of the Potomac River, to be equipped for taking oysters therein at any time
with a mast, or boom, or power winders, or patent tongs, or any other
tackle or equipment for the operation of a power winder dredge or of
patent tongs, except for boats the masters of which have, before such trip,
been granted permission by the Commission to take such boats between
areas where such equipment is allowed. Such permission shall be evidenced
by a permit from the Commission which shall be carried by some person
on the boat and produced for inspection upon request. Each person on
any boat within the limits of the Potomac River which is equipped in
violation of any provision of this act shall be subject to the penalties
provided by § 14 hereof.

§ 13. All oysters taken from the waters of the Potomac River exclu-
give of its tributaries, including planting grounds, shall be culled at the
point where taken. All such oysters which measure less than three inches
from hinge to mouth, taken from such waters, are hereby declared to be
unmarketable oysters and, together with all detached empty shells, shall
be returned to the water whence taken. All such oysters and detached
empty shells once passed from the cull board shall be considered as having
been culled and if it is found that such culled oysters contain more than
five per centum (5%) of unmarketable oysters and detached empty shells,
so ascertained by a reasonable inspection, the captain, or person in.charge
of the boat on which such oysters and shells are found, shall be guilty of
a violation of this act and shall be subject to the penalties provided in
§ 14 hereof. Possession of such unmarketable oysters and detached empty
shells in a boat on any of the waters specified 1n this act shall be deemed
prima facie evidence that such oysters and detached empty shells were
taken from such waters.

It shall be a violation of this act for any person to buy, sell or have
in his possession oysters taken from the water specified in this act which
contain more than five per centum (5%) unmarketable oysters and de-
tached empty shells. Any person who has in his possession more than five
per centum (5%) unmarketable oysters and detached empty shells, shall
‘be deemed prima facie guilty of a violation of this act and the burden shall
be upon such person to prove that such oysters were not taken from the
waters so specified. Upon conviction of such a violation, such person shall
be subject to the penalties provided by § 14 hereof.

It shall be a violation of this act for any captain, or person in charge
of any vehicle, boat, or other vessel, to fail or refuse to stop upon a suitable
signal being given to that effect by a duly authorized officer, or to fail or
refuse to permit inspection of such vehicle, boat, or other vessel, and its
contents. Any person violating this provision shall be punished as pro-
vided in § 14 hereof.

§ 14. Any person who violates any of the provisions of this act, or
rules or regulations adopted hereunder, shall be fined for each such viola-
tion not less than one hundred dollars nor more than five hundred dollars
for the first offense, and not less than two hundred dollars nor more than
one thousand dollars for the second and each subsequent offense. Provided,
that no person shall be deemed to be a second or subsequent offender if
such person has not been fined within a period of three years for violating
any of the laws which the Commission is empowered to enforce. Further-
more, a third conviction within a period of three years shall operate as a
revocation of the license of such convicted person and the court shall upon
such conviction require the guilty party to forthwith surrender his license
and shall notify the Commission of its action. No license thus revoked
shall again be issued to such an offender until such a time as may be
determined by the Commission.

In addition to the penalties above prescribed the boat, equipment and
gear employed in the second violation or subsequent violation in the discre-
tion of the court trying the case shall be subject to confiscation and sale
under the laws of the State in which the violator is tried, provided however
in the case of boats, equipment and gear engaged in a violation without a
license from the Commission or when the license has been suspended or
revoked confiscation shall be applicable as set forth above in the first
violation hereof.
All oysters of which more than five (5%) per centum unmarketable
oysters or detached empty shells are a part shall be forfeited to the Com-
mission and disposed of as it deems proper.

§ 15. The gross proceeds of the oyster tax and all fines and penalties
assessed under this act shall be divided equally between the States of
Maryland and Virginia. The share of such proceeds to which the State
of Maryland is entitled shall be paid into the State treasury of Maryland
and placed to the credit of the Oyster Fund as provided by § 34 of Article
72 of Annotated Code of Maryland (1939 Edition). The share of such
proceeds from the oyster tax to which the State of Virginia is entitled shall
be paid into the general fund of the State of Virginia, and the proceeds of
fines and penalties shall be paid into the Literary Fund.

2. All acts or parts of acts in conflict herewith are repealed to the extent
of such conflict. Provided, however, that nothing herein shall be deemed
to repeal any of the provisions of the Compact of March 28, 1785, or to
change the same except insofar as this act does so directly.

3. If any provision of this act or application thereof be held unconstitu-
tional by a court of last resort, such holding shall not impair the remainder
of this act or any other application thereof not specifically held invalid.
4. This act shall become effective in due course provided by or at such
time the other State having representation on the Commission has enacted
similar legislation, or when it does enact similar legislation, and shall
remain effective so long as similar legislation exists in both States.