HURLEY
v.
COMMISSION OF FISHERIES OF VIRGINIA ET AL.
No. 33.
Supreme Court of United States.
Argued October 10, 11, 1921. Decided December 5, 1921. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF VIRGINIA.Mr. Thomas B. Snead and Mr. S.S.P. Patteson, with whom Mr. Herbert I. Lewis and Mr. Thomas J. Downing were on the brief, for appellant.
Mr. Robert W. Shultice, with whom Mr. J.D. Hank was on the brief, for appellees.
*225 MR. JUSTICE McREYNOLDS 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 *226 action 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.