CHAPTER 151
SHELLFISH
AN ACT TO AMEND PART II, TITLE 7, DELAWARE CODE, ENTITLED "SHELLFISH" BY CONSOLIDATING THE DELAWARE COMMISSION OF SHELL FISHERIES AND THE COLLECTOR OF OYSTER REVENUE AND GENERALLY REVISING THE PROVISIONS PERTAINING TO SHELLFISH.
Be it enacted by the General Assembly of the State of Delaware (two-thirds of all the Members elected to each House concurring therein):
Section 1. Part II, Title 7, Delaware Code, is repealed and a new Part is substituted in lieu thereof to read as follows
Part Ii Shellfish
Chapter 19. Delaware Commission Of Shell Fisheries
§ 1901. Continuation; appointment; qualifications; terms of office; vacancies
(a) The Delaware Commission of Shell Fisheries, hereinafter referred to as the "Commission" is continued. The Governor shall appoint five persons who shall constitute the said Commission. Two of the persons so appointed shall be actually engaged in the shellfish industry as planters or shippers, or owners or lessees of land on which shellfish are produced. The fifth member of the Commission shall be the Executive Secretary, hereinafter provided for, who shall be a member of the Commission during his term of office.
(b) Members of the Commission shall be appointed for terms of three years each, from May 1st in the year of appointment.
(c) Any vacancies occurring shall be filled by the Governor for the unexpired term, beginning on the first day of May in the year of appointment.
(d) No more than three members of the Commission shall be of the same political party.
(e) In the event the members of the Commission, other than the Executive Secretary, are unable to agree upon any question or matter before it because of a tie vote, then the Executive Secretary shall be called upon to cast a vote upon such question or matter causing the tie vote.
§ 1902. Meetings; officers
The Commission shall meet in the State House in Dover, at such times as its rules prescribe, and at such other times and places within the State as it deems necessary. The Commission shall elect one of its members President who shall hold office for one year, or until his successor is duly elected and qualified.
§ 1903. Compensation; mileage and expenses
The members of the Commission shall receive no compensation for their services, but shall be allowed all necessary expenses in carrying out their duties as members of the Commission, including mileage at the rate fixed by law, going to and from their residences to the point of service, and returning therefrom.
§ 1904. Executive Secretary; appointment; term of office; removal; duties; bond, oath, salary
(a) The Governor shall appoint an Executive Secretary of the Commission. The Executive Secretary shall serve at the pleasure of the Governor and may at any time be removable by the Governor.
(b) The Executive Secretary shall manage and supervise the operations of the Commission and shall see that all functions are properly carried out in accordance with the policies, rules, and regulations of the Commission.
(c) The Executive Secretary shall issue in the name of the Commission all forms, permits, and licenses, authorized by said Commission, and his signature alone is evidence of validity of said form, license or permit.
(d) Before the Executive Secretary enters upon the duties of his office he shall give bond, with surety to be approved by the Governor, in the penal sum of $10,000, conditioned for the faithful performance of the duties of his office. He shall also be sworn or affirmed that he will faithfully and impartially perform the duties of his office. The official bond of the Executive Secretary shall be recorded in the Recorder's office of Kent County, and the original (which shall be filed in the office of the Secretary of State), or a copy thereof from the Record, duly certified, shall be evidence. The official bond of every Executive Secretary shall continue in force after the end of his term of office, his removal therefrom, or after the occurring of any vacancy in said office, and he and his sureties therein shall be liable thereon for any breach by him of the duties of his office.
(e) The Executive Secretary shall receive for his services an annual salary of $5,000.
§ 1905. Personnel
The Commission shall appoint, fix the compensation and terms of service, and prescribe the duties and powers of, watch boat captains, oyster wardens and such officers, attorneys, experts, engineers, inspectors, clerks and other persons, as it deems necessary for the proper conduct of the work of the Commission.
§ 1906. Term of licenses; when void
(a) All licenses and permits issued by the Commission shall expire annually upon the first day of April next succeeding the date of issue.
(b) All licenses issued by the Commission are void on Sundays.
§ 1907. Duties; powers; making and enforcing regulations
(a) The Commission shall have full control and direction of the shellfish industry and of the protection of shellfish throughout this State. The Commission may, by affirmative vote of a majority of the Commission, adopt, promulgate, amend, and repeal regulations consistent with the law, which shall be enforced by members of the Commission, the Captain or Masters of guard boats, guards, special inspectors employed by the Commission, and any police officer or constable, for the following purposes--
(1) To preserve and improve the shellfish industry of this State.
(2) To operate, cultivate, and replenish on the oyster or clam grounds or beds in waters within the jurisdiction of this State.
(3) To regulate, inspect, and approve any boat or vessel or equipment used in the shellfish industry in this State.
(4) To provide regulations for the replacement of any boat or vessel lost or destroyed which was licensed in the shellfish industry of this State.
(0) When deemed necessary to provide for the issuance of permits to persons engaged in the shellfish industry in this State and for the revocation for cause of such permits.
(1) To provide for the preservation and improvement of the oyster and clam beds and grounds of this State.
(b) The regulations of the Commission shall have the force and effect of law and shall supersede all local ordinances and regulations enacted or adopted which are inconsistent therewith. A copy of every such regulation, giving the date that it takes effect, shall be filed with the Secretary of State, and shall be published in at least two newspapers of general circulation in the territory to be affected once a week for two weeks prior to the time the rule or regulation becomes effective, except in the case of an emergency when the Commission shall give such advance notice as it deems necessary.
§ 1908. Leasing acreage under jurisdiction of Commission
The following rules and regulations are prescribed to govern the work of the Commission with respect to the leasing of acreage in the areas over which the Commission has jurisdiction--
(2) The Commission shall lease to residents of this State areas in Indian River Bay and in Rehoboth Bay where there is no natural growth of oysters;
(3) Such areas may be so leased for the purpose of planting oysters and clams and catching same by means of dredges, tongs or rakes;
(4) No part of Rehoboth Bay within 300 feet from shore, and no part of Indian River and Bay within 1000 feet from shore, shall be leased for the purposes herein stated;
(5) The annual rental for the areas so leased shall be fixed by the Commission but shall not be more than $2 per acre and shall not be less than $.75 per acre;
(6) The area so leased may be used by the parties leasing it either for a private supply of oysters or for commercial purposes but some planting of oysters shall be made upon each area leased during each year held by the person leasing it;
(7) No license shall be issued to a non-resident of this State for the purpose of allowing the taking and catching of clams for commercial purposes;
(8) The Commission shall not continue to lease areas in the waters aforesaid to any person who fails to plant and cultivate the area or plantation leased to him within a period of two years from the original leasing;
(9) Upon such failure to cultivate or plant oysters within two years from leasing, the bottom so leased shall revert to the State;
(10) No lease of any oyster bottom shall be issued except in Delaware Bay, Indian River Bay, or Rehoboth Bay, and no creeks, rivers, canals or waters other than the three bodies of water above named shall be subject to lease by any public body or agency for oyster purposes;
(10) No person shall lease any area in Indian River Bay or Rehoboth Bay in the name of another person, firm, corporation or association but shall only lease the same in his own name;
(0) Areas leased by the Commission shall be marked by stakes driven in the several corners or angles of the lines bounding the area leased;
(10) Such stakes shall have distinctive marks indicating the ownership of the grounds and shall be so placed as not to be obstructive to navigation or to interfere with the rights of fishermen or to interfere with private or public bathing beaches;
(11) Areas leased may be retained by the person leasing the same upon the payment of the required annual charges and the observance of all laws, rules and regulations made with reference to the planting and cultivating and taking of oysters or clams, or both, in and from the bodies of water herein named;
(12) Violations of laws, rules and regulations enacted by the General Assembly or made by the Commission, or failure to pay rentals, shall forfeit the areas leased to this State;
(13) The Commission shall advise persons desiring to lease areas in Indian River Bay and Rehoboth Bay as to the location of the grounds subject to lease and upon request shall furnish copies of rules and regulations of the Commission governing the planting, cultivating and catching of oysters and clams in the waters aforesaid;
(14) At some time during the months of January, February and March of each year, every lessee of water areas of this State, leased for the purpose of planting and cultivating oysters or clams thereon, shall make a report to the Commission stating the number of bushels of oysters and clams planted during the preceding calendar year, the amount of cultivation done upon the leased grounds, and the number of bushels of oysters and clams proposed to be planted during the calendar year in which such report is made;
(17) When any oysters from outside of this State are secured for the purpose of planting in the waters of this State, they shall be accompanied by a certificate of purity from the proper authorities of the State from which obtained and such certificate shall be filed with the Commission before the oysters are planted in Delaware waters;
(18) After the completion of the proposed survey of the inland waters of this State to ascertain the boundaries and extent of the areas leased for the planting of oysters or clams, the Commission may adjust the boundaries of the leased areas where there is overlapping or conflict of claims, and the decision of the Commission with respect to any dispute between lessees shall be final.
§ 1909. Fees and charges
(a) The Commission may establish fees or charges for the taking of shellfish from any of the waters within the jurisdictional limits of this State, to be fixed on a unit basis of not more than fifteen cents per bushel of any shellfish taken from the waters.
(b) The Commission may issue such permits as it deems necessary to persons engaged in the shellfish industry in this State, and shall establish fees or charges for the same.
§ 1910. Examination of witnesses; perjury; subpoenas
The Commission, by its presiding officer, may administer oaths and examine witnesses under oath in any part of this State, in any matter relating to the shellfish industry. Whoever, having been sworn, willfully gives false testimony, is guilty of perjury. For the purpose of this section, the Commission may issue subpoenas signed by its president and Executive Secretary, requiring the attendance of witnesses and the production of books and papers in any part of the State.
§ 1911. Prohibition against vacuum or suction devices for taking shellfish
No person shall use anywhere in this State any mechanical device which uses a vacuum or suction method for taking or catching oysters, clams, crabs or other shellfish.
CHAPTER 21. OYSTERS
SUBCHAPTER I. GENERAL PROVISIONS
§ 2101. License to take oysters from Delaware River or Bay; larceny; violation
No person, resident or non-resident of this State, shall dredge for or take and carry away any oysters growing in the Delaware Bay or River unless he has first taken out one or the other of the licenses provided for in Part II of this title, and in case of the violation of this section the offender is guilty of larceny. In order to promote the execution of this section, and for that purpose only, the oysters growing or being at any time in the said Bay or River, on bottom over three feet deep, at ordinary low water, and not within any plantation, shall be held and taken to be in the custody and may be described in any proceedings for violation of this section as the property of the Commission. Such Commission shall be the bailee of said oysters, and have the same kind of special property therein as bailees have by law of property in their possession by bailment under contract.
§ 2102. Taking oysters from another's oyster bed; larceny; penalty; lien
Whoever takes, carries away or removes any oysters being or lying within the limits of any oyster bed, bottom or plantation of another, held, enjoyed or appropriated to his use under any of the provisions of Part II of this title, without the consent of such proprietor or owner thereof, is guilty of larceny. It shall be no objection to such prosecution for larceny that the act charged was done openly.
The fine, with the costs of prosecution, shall be a lien upon the boat or vessel used by the offender from the time of the seizure thereof as provided in subchapter IV of this chapter; and the proceedings for such violation shall be before any justice of the peace as provided in subchapter IV of this chapter, and the offender shall be imprisoned until such fines and costs are paid, or until such boat or vessel is sold as subchapter IV of this chapter provides.
§ 2103. Taking oysters from creek or river at night; penalty; lien
No oysters shall be taken or caught, in any manner or for any purpose, from any of the creeks or rivers of this State at any time after sunset and before sunrise.
Whoever violates any of the provisions of this section shall be fined. The fine, with the costs of prosecution, shall be a lien upon the boat or vessel used by such offenders from the time of the seizure thereof as provided in subchapter IV of this chapter; and the proceedings for such violation shall be before any justice of the peace as provided in subchapter IV of this chapter, and the offender shall be imprisoned until such fines and costs are paid, or until such boat or vessel shall be sold as subchapter IV of this chapter provides.
§ 2104. Oysters taken from tributaries of Delaware Bay; method of culling; legal size; violation
Plant and seed oysters caught in any river, creek or pond (excepting Broadkiln River or its tributaries) tributary to the Delaware Bay, shall be culled on a board and those not useable shall be thrown back and shells returned at the place where they are caught. Each person shall be permitted to catch or take 25 bushels per day but no more from said rivers, creeks or ponds (excepting Broadkiln River or its tributaries).
Any person entitled to catch or take oysters under the provisions of Part II of this title, relating to Broadkiln River and its tributaries, is prohibited from taking oysters from Broadkiln River or its tributaries, less than three inches in length.
§ 2105. Oysters taken from natural oyster beds of Delaware Bay; culling; violation, enforcement
(a) All oysters, oyster shells and other material, dredged, tonged or in any manner raised or taken from the natural oyster beds of the Delaware Bay within the jurisdiction of this State shall be culled as soon as the same are emptied out of the dredges or tongs on the deck of the boat or vessel employed for the purpose, and before the same are shoveled back from that portion of the deck used for emptying the dredges. All shells and other material, except oysters, shall be immediately thrown back upon the beds or ground from which they have been taken. All such oysters, oyster shells and other materials shall be culled as aforesaid so closely that ten bushels thereof taken from any portion of a deck load. of oysters, after they have been shoveled back from that part of the deck used for emptying the dredges and tongs aforesaid, shall not contain more than 20 per cent of shells and other material.
§ 2106. Examination of vessels by enforcement officers; refusal; penalty
When the master, commander, captain or person in charge of any boat, vessel or other craft, licensed under the provisions of the laws of this State, is hailed or signaled by enforcement officers of this Commission, and he refuses to stop and permit the enforcement officers to board the boat, vessel or other craft and examine the oysters, oyster shells and other material on such boat, vessel or other craft, the Commission shall revoke the license of the boat, vessel or other craft so refusing.
§ 2107. Oyster planting; areas available for appropriation; requirements
Any person may appropriate to his own use a part of the bottom of Indian River or Rehoboth Bay or Assawoman Bay for planting oysters, which part he shall designate by corner stakes to show at least two feet above the ordinary high water mark and not to be obstructive of navigation. It shall be the possession of the planter, and the oysters to be deposited therein and their increase shall be his private property. Any such person so intending to appropriate any part of the bottom of the Indian River or Rehoboth Bay or Assawoman Bay shall, within 30 days after he has staked off the area which he intends to use for planting oysters, shall file with the Commission, a sufficient plot and description of the area whereby the same may be known and located, reference being made in plot and description to natural objects, or to artificial boundaries erected or fixed on the shore or shores of the Indian River or Rehoboth Bay or
Assawoman Bay. The plot or description shall be recorded in the office of the Commissioner. If the planter fails to file a plot and description within 30 days or fails to pay his ground rent within 30 days after it becomes due and payable, he forfeits all right, title and claim to the area, and the same may be appropriated by any other person.
§ 2108. Areas appropriated for oyster planting; nature of property right acquired
The privilege granted by section 2107 of this title shall not convey any other right than that of planting oysters or holding them as property, which shall be liable for the debts of the person so appropriating any of such area for oyster planting. Any levy and sale under execution process of the area of any defendant in such process shall convey to the purchaser the same right to use the area for oyster planting purposes that the defendant had and owned and all the oysters thereon planted at the time of the sale.
§ 2109. Carrying oysters from appropriated areas; penalty
Whoever takes and carries away from the area or plantation of another, appropriated to his use, any oysters being within the limits thereof, without the consent of the owner thereof, is guilty of larceny. It shall be no objection to a prosecution for larceny in such a case that the act was done openly.
§ 2110. Mortgage of oyster beds leased from this State
It shall be lawful for any person holding or occupying oyster grounds on lease from this State, to mortgage or assign his interest in said oyster grounds to any person, partnership, association or corporation, domestic or foreign, regardless of the amount of acreage involved, for the purpose of securing any loan or advances made in the past or to be made in the future by said person, partnership, association, corporation, domestic or foreign.
SUBCHAPTER II. TAKING OYSTERS FROM BROADKILN RIVER OR ITS TRIBUTARIES
§ 2131. Minimum size of oysters; exception for plants; culling
No person shall take or catch for market or buy or sell any oysters from Broadkiln River or its tributaries which are less than three inches in length. All oysters caught or taken from such river or its tributaries shall be culled in the stream of water of at least two feet deep at mean low water. Nothing in this section shall prohibit or affect the catching or taking, buying or selling of oysters of any size to be used solely for planting purposes.
§ 2132. Daily catch limit
No boat shall take or catch more than 25 bushels of oysters from the Broadkiln River or its tributaries in any one day. An allowance of 20% of the total catch shall be made for waste.
§ 2133. Taking of oysters from Broadkiln River
No oysters shall be taken or caught from the Broadkiln River or its tributaries, except during the period from October first, to the following March thirty-first, both dates inclusive.
State Board of Health may permit oysters to be taken out of Broadkiln River for seeding purposes only in home waters.
CHAPTER 23. CRABS AND CLAMS
§ 2301. Female crabs bearing eggs
No person shall catch, offer for sale or have in possession at any time any female crabs bearing eggs visible thereon (sponge crabs), or any female crab from which the egg pouch or bunion has been removed.
§ 2302. Taking hard shell crabs from tidal waters for non-commercial use
Any citizen of the United States may catch and take hard shell crabs, of not less than four inches in length, except as otherwise provided, in any of the tidal waters of this State without a license.
A non-resident shall not use at any time more than four hand lines and shall not take more than 50 hard shell crabs of not less than four inches in length on each line in any one day.
§ 2303. Limitations on sale or possession of hard shell crabs taken from certain waters
(a) No person at any time shall sell or offer for sale any hard shell crabs taken from any of the waters of Indian River, Rehoboth Bay or any of their tributaries.
(b) No person shall at any time have in his possession more than one bushel of hard shell crabs other than peeler crabs, less than five and one-half inches in length taken from said waters.
§ 2304. Minimum legal size of crabs; violation and penalty
No person shall take, possess, sell, possess for sale, or offer for sale any soft shell crab measuring less than three and one-half inches across the shell from tip to tip of spike, or any peeler crab measuring less than three inches from tip to tip of spike.
§ 2305. Use of dredge or rake; license; fee; requirements; reissue; violation and penalty
(a) Any person operating any boat in this State using a dredge or rake to catch crabs shall apply to the Commission for a license for that purpose and pay a license fee of $15.00 for each dredge. No boat in this State shall be used to catch crabs, unless such boat is owned, and has been owned continuously by a resident of this State, for a period of one year immediately preceding the application for and granting of such license; except in the case of a new boat built in this State within less than one year of the time of such application for and granting of such license, and owned by a resident of this State continuously from the time of its being built.
(b) Any person may take crabs in pots provided there are not in excess of 150 pots operated from each boat and upon the payment of a license fee of $15.00 for each boat.
(c) Any resident of this State who has applied for a license and is operating a boat pursuant to that license and whose boat is lost by reason of a storm, fire or other cause over which he had no control shall be permitted to purchase another boat in order to continue his work, and the Commission, upon his application, shall forthwith issue to him a license and shall not make a charge for said license.
(d) This section shall not apply to that part of the Bay bottom now under lease for dredging or propagating oysters.
(e) It shall be unlawful to take crabs by dredge from March 16 to December 15 of any year.
§ 2306. Motor-powered rakes for taking clams; Rehoboth and Indian River Bays
(a) No person shall take any clams in Rehoboth Bay or Indian River Bay with any rake, dredge, appliance, or device operated by motor power or towed or hauled by a boat propelled by motor power.
CHAPTER 25. LOBSTERS
§ 2501. Taking of lobsters
No person shall catch and take or attempt to catch and take lobster from the waters of this State in any manner whatsoever.
CHAPTER 27. ENFORCEMENT SUBCHAPTER I. WATCH BOATS
§ 2701. Watch boats
For the purposes of enforcing the shellfish laws and of protecting the oyster beds, the Commission shall keep and maintain suitable vessels as watch boats.
§ 2142. Duties of watch boats; log book
The watch boats shall be employed at all times to enforce the shellfish laws and in the protection of the natural oyster beds of this State and the plantations of the several planters from depredation by trespassers, and shall cruise at all times, when the weather will allow, over the oyster plantations and natural beds from one end of them to the other, that no depredation upon any of them may be unseen, and shall not go to harbor except when stress of weather or when accident or some urgent necessity requires it.
On board of the watch boats shall be kept a log book, in which shall be entered the names of every person licensed to plant or dredge for oysters, with the number of his license and the time when the same was taken out, and also the name of each person constituting the crew of the different boats or vessels used in dredging for oysters on the natural beds.
§ 2702. Resistance to crew of watch boat; nature of offense; penalties
Whoever resists the crew of a watch boat and those who are acting in aid of them, or any of such persons in the enforcement of Part II of this title shall, if such resistance does not endanger life, be fined. If life be endangered, but not taken, he is guilty of a felony, and shall be fined and imprisoned one year; if life be taken by the resisting party he is guilty of murder in the first degree.
§ 2703. Use of force; pleading statute as defense
In the performance of the duties enjoined by Part II of this title, the crew of any watch boat and those aiding it voluntarily, or upon requisition as provided in section of this title, may use any force necessary for that purpose, and in any proceedings against them, either criminal or civil, they may plead Part II of this title in justification or give it in evidence under the general issue.
§ 2704. Posse comitatus
Upon the command of the captain of any watch boat, or, if he is sick or absent, upon the command of the person at the time in charge of the watch boat, any other boat or vessel, together with its crew, shall aid and assist the watch boat and its crew as a posse comitatus in the enforcement of the several provisions of this chapter. Such enforcement shall be the seizure of the boat or vessel used in the violations of the provisions of Part II, and everything in and belonging to her including the master or captain.
§ 2705. Watchboats for Broadkiln and Mispillion Rivers; wardens in charge; appointment and salary; penalty for violation
(a) For the purpose of enforcing the shellfish laws and of protecting the oyster beds in the Broadkiln River and the Mispillion River, and those who have planted, or may hereafter plant, oysters therein, the Commission shall keep and maintain upon each of the Rivers a suitable watch boat, upon each of which shall be placed a warden and any other persons necessary, in its judgment, to enforce the laws relating to oysters.
(b) The Wardens and other employees on the watch boats shall be appointed by the Governor, to serve at his pleasure. The warden employed on the watch boat patrolling the Broadkiln River shall be a resident of the Tenth Representative District in Sussex County. The warden employed on the watch boat patrolling the Mispillion River shall be a resident of Cedar Creek Hundred in Sussex County. The wardens and other employees shall be paid a salary, commensurate with their duties by the State Treasurer upon proper voucher signed by the President and Executive Secretary of the Commission.
(c) The watch boats shall be employed at all times in the enforcement of law and the protection of the natural oyster beds in the Rivers and any other oyster plantations and shall cruise at all times, when the weather will allow, over the oyster beds and plantations for their protection and for the purpose of enforcing the laws of this State.
SUBCHAPTER II. VIOLATIONS AND PROCEEDINGS
§ 2710. Seizure of boats and arrests
The captain of any watch boat shall keep a strict and vigilant watch and see that no violations are made of any of the provisions of Part II and whenever, upon his own view, or upon reliable information, he has good grounds to believe that any boat or vessel is being used in violation of any of the shell fish laws of this State, he shall seize such boat or vessel and safely keep the same until sold or discharged by due course of law, and he shall arrest all the crew, including the captain or master, and take them before a Justice of the Peace.
§ 2711. Seizure and arrest upon warrant of Justice of Peace or order of Collector
Upon complaint made by any person before any Justice of the Peace supported by oath or affirmation, that any boat or vessel has been used or is being used in violation of any of the shell fish laws, the justice shall issue a warrant under his hand and seal, directed to the captain of the watch boat, commanding him to seize such boat or vessel and to arrest all her crew, including the captain or master. The captain of the watch boat shall forthwith proceed as instructed.
When the Commission has knowledge or reliable information that any boat or vessel has been used or is being used in violation of the provisions of Part II of this title, it shall order the captain of the watch boat to seize such boat or vessel and arrest all her crew, including her captain or master, and thereupon the captain of the watch boat shall proceed as provided in this chapter. If the captain of the watch boat is absent or incapable of acting in the premises, the person at the time in charge of the watch boat shall do and perform all matters and things herein required of the captain of the watch boat.
§ 2712. Proceedings before Justice of the Peace
(d) In order to give the defendants an opportunity for a fair trial, the justice shall fix a day for the hearing, which shall not be more than five days from the time of the arrest, and may be earlier if the defendants so desire.
(e) If, from any cause, the justice is satisfied that the defendants cannot be prepared for trial by the day fixed by him, he may postpone the hearing to a day not more than five days from the day first fixed. Any person so arrested shall give bail for his appearance on the day fixed for trial, in a sum to be fixed by the justice, and in default thereof shall be committed to the jail. Upon proof to the satisfaction of the justice that the defendants or any of them is guilty, the justice shall impose upon the defendant or defendants, severally so found guilty, a fine for such violation, together with the costs of proceedings, including costs of seizure and detaining the said boat or vessel, and the defendants so found guilty shall be imprisoned until the fines and costs be paid, or until such boat or vessel shall be sold as hereinafter provided. The fine and costs shall be a lien upon said boat or vessel from the time of her seizure, and such boat or vessel, and everything in or belonging to her, shall be detained until the fines and costs are paid. In case the fines and costs are not paid within 15 days from the time the same were adjudged by the justice, then the justice, or any other Justice of the Peace shall issue an order to any constable commanding the constable to sell such boat or vessel, and all and everything in and belonging to her to the highest bidder, at public sale, on ten days' notice, by advertisement posted in six public places in the State. The proceeds of such sale, after deducting the fines and costs, shall be paid to the owner or owners of such a boat or vessel. If said proceeds are not sufficient to pay the whole of the fines and costs, the proceeds shall be first applied to the costs, and the balance thereof to the fines, and thereupon any persons who have been imprisoned by reason of non-payment of the fines and costs shall be discharged from imprisonment.
§ 2713. Appeal
The defendants may appeal to the Superior Court, upon giving security by bond with surety before the Justice of the Peace, to the State of Delaware, in a sum double the amount of the fine imposed, to prosecute the appeal with effect at the next term of the court. The appeal shall be tried at said term by jury, unless the court continue it, and, upon certificate by the prothonotary that the appeal was not prosecuted in due time, or was decided against the appellant, the bond shall be forfeited and be at once proceeded upon at the instance of the Commission. The appeal shall be a supersedeas; but it shall not be granted after an expiration of fifteen days from the time of the imposition of the fine.
§ 2714. Presumption of dredging
When an oyster boat or vessel is sailing over a plantation or oyster grounds with dredges overboard and the men or crew, or part of them, at the winder on board of such boat or vessel handling or working the dredges, it shall be conclusive evidence that the parties on board of such boat or vessel are dredging for oysters. When a boat or vessel is discovered on the plantation or ground of another, so working with dredges overboard, without such owner's permission, it shall be conclusive evidence that the persons on board of such boat or vessel are violating the provisions of section 2102 of this title.
§ 2715. Names of persons charged; form of proceedings for seizure and sale
(f) Upon parties charged with violations of any of the provisions of Part II of this title being brought before the justice, he shall inquire their names, and upon refusal to give them, he may assign to them in his own proceedings any names he may choose, which shall be taken to be their true names, and they shall be further described as belonging to the boat or vessel seized, which shall also be named.
(g) The proceedings may be according to the following form:
|
The State of Delaware
vs.
A,B,C,D,E,F
Belonging to the boat or vessel
|
Proceedings for violation
of Section of Title of the
Delaware Code
|
And now to wit, this _________ day of _________ A D., _______ the parties defendant being brought forward and the said boat or vessel being in custody, and the parties being ready for trial, and the testimony having been heard and considered, it is hereby adjudged that the said A, B, C, D, E, F, (or such of them as were guilty), are guilty of violating, on the _______ day of ______ last, Section ____ of Title 7 of the Delaware Code, by the use of the said boat or vessel and the implements on her for that purpose, and they are each hereby ordered severally to pay a fine of one hundred dollars, and jointly to pay the costs of prosecution and the costs of seizing and detaining said vessel, and are committed to the custody of the Sheriff until the said fines and costs be paid, or until the said boat or vessel be sold. It is further ordered that if the said costs and fines be not paid in fifteen days that the said boat or vessel and her implements as aforesaid and all her appurtenances be sold by M. W., Constable, to the highest bidder, on ten days' notice by advertisements in six of the public places in the State.
J.D.J.P
§ 2716. Jurisdiction of offenses; disposition of fines
(h) Any Justice of the Peace of this State shall have jurisdiction over every violation of the provisions of Part II of this title and the proceedings for every such violation shall be before a Justice of the Peace, with right of appeal as provided herein.
(i) All proceedings against any offender under Part II of this title shall be in the name of the State of Delaware.
(j) The fees to the justice and any officer rendering service under Part II of this title for violations thereof, shall be the same as now provided by law for like or similar cases. Any or all fines which are imposed, and are collected and received by any constable shall be forthwith paid by the Constable to the Commission. The failure to pay over such fine or fines to the Commission within ten days after the same may be received or collected by any constable shall be a breach of his official obligation, and the Commission forthwith shall bring suit on such official obligation of such constable so failing to pay such fine within the time aforesaid.
§ 2717. Violations and penalties; appeals
(a) Whoever violates any of the provisions of Part II of this title, or any of the rules and regulations of the Commission shall be fined not less than $100, nor more than $1,000; and upon failure to pay said fine shall be imprisoned for not less than one nor more than six months.
(b) Any person convicted before a justice of the peace for the violation of any of the provisions of Part II of this title or any of the rules and regulations of the Commission shall have the right to appeal to the Superior Court for the county in which the conviction occurred. The appeal shall be taken within five days after such conviction, and security shall be taken, to be approved by the justice, in double the amount of the fines and costs imposed by the justice.
Section 2. The members of the Commission who were serving on the effective date of this act shall continue to be and are members of the Commission until the expiration of the respective terms of office to which they were last appointed by the Governor.
Section 3. The person holding the office known as the Collector of Oyster Revenue on the effective date of this act shall serve as Executive Secretary until the expiration of the term of office to which last appointed by the Governor.
Section 4. Any appropriations to the Collector of Oyster Revenue for salary of Collector and Salaries and Wages are transferred to Salaries and Wages of the Delaware Commission of Shell Fisheries. Any other appropriations to the Collector of Oyster Revenue and any credits which the Collector has in any funds of the State are transferred to the Delaware Commission of Shell Fisheries.
Section 5. The sum of $50,000 for the fiscal year ending June 30, 1958 and the further sum of $50,000 for the fiscal year ending June 30, 1959, is appropriated to the Delaware Commission of Shell Fisheries to carry out its duties under this Act.
Section 6. This is a supplementary appropriation and the funds appropriated shall be paid from the General Fund of the State of Delaware.
Approved June 13, 1957.