CHAPTER 422
*This Chapter comprises Chapter 55 of the Revised Statutes as amended by Chapter 421 current volume, and is published in compliance with Section 19 of said Chapter.
OYSTERS, CLAMS, TERRAPINS
SECTION 1. It shall be unlawful for any person, not being a citizen of this State, to catch, or take oysters, clams, or terrapins in the Delaware bay, within the limits of this State, without having first obtained from the Clerk of the Peace of one of the counties a license therefor, which license shall be granted on paying to said clerk, for the use of the State, fifty dollars, and shall be in force for one year from its date, and shall be confined to one boat, or vessel, named therein; provided, that transient vessels may catch oysters, or clams, for their own immediate use.
If any master of a boat, or vessel, or other person, shall violate this section, he shall be deemed guilty of misdemeanor, and shall pay to the State a fine of fifty dollars and the boat or vessel used in such violation of the law, with all her tackle, apparel and furniture, and all her implements for taking oysters, and all oysters, clams, or terrapins so taken, shall be forfeited and may be seized and detained for trial by any officer or person.
Such trial may be had before any justice of the peace, and if condemned, the property seized shall be sold by his order; and the proceeds, deducting costs and charges, be equally divided among the captors; provided, that an appeal shall be allowed from the judgment of the justice, if applied for within ten days, to the Court of General Sessions of the Peace and Jail Delivery, on security being given by bond, and sufficient surety, in the full value of the property condemned, conditioned to be void if such judgment shall be reversed by said court. Upon such appeal, a jury trial shall be had on the issue whether the boat or vessel seized has been used in violation of this chapter; and if it be found in the affirmative, the court shall affirm the judgment of the justice; otherwise such judgment shall be reversed, and the property seized shall, thereupon, be sold, or released, accordingly.
The Attorney General shall appear for the captors and defend the appeal.
Any justice of the peace shall, upon affidavit made that a boat or vessel is violating this chapter, issue his warrant to the sheriff, commanding him to seize and detain such boat, or vessel. The sheriff may, if necessary, summon to his aid the posse comitatus armed with fire arms and ammunition, and may require the assistance and use of any other boat, or vessel, on paying, or tendering, just compensation.
It shall not be necessary that the affidavit shall state the name of the vessel, or of her master; such names may be inserted in the proceedings after the seizure.
The sheriff shall be entitled to five dollars per day, and each person summoned by him and rendering him aid, to one dollar per day, to be paid out of any property seized and condemned, or, if not so paid, by the State.
If any owner, master, or person belonging to, or on board of resistance any boat, or vessel, shall oppose, or resist the sheriff, or other person, in the execution of such warrant, or shall resist any lawful seizure of such boat, vessel, or other property, such person shall be deemed guilty of a misdemeanor and shall pay to the State a fine of one hundred dollars. It shall be the duty of the Attorney General to cause any person indicted under this chapter, and who is out of the State, to be demanded and brought to trial.
SECTION 2. It shall be unlawful for any person, not being a of this State, to catch or take oysters, clams, in any river, creek, or pond, within this State, and put them on board of any boat, or vessel, not wholly belonging to and owned creek, by citizens of this State; and the violation of this section shall subject the party offending to the same forfeitures and penalties, to be prosecuted in the same way, as is provided in Section 1 of this chapter.
SECTION 3. All oysters caught in any such river, creek, or pond, shall be culled at the place where they are caught, and the young and refuse oysters there deposited, under penalty of forfeiting ten dollars for every violation of this section. But no person shall cull oysters in Mispillion creek, above the upper end of the "broad reach," under penalty of five dollars.
SECTION 4. It shall be unlawful for any person to carry at any one time, in any vessel or boat, wagon, cart, or carriage, from any of the waters of this State, any quantity of oysters, or clams exceeding twenty bushels, which have been caught in any river, creek, or pond thereof, under penalty of forfeiting twenty dollars.
SECTION 5. It shall be unlawful for any person to catch or take oysters in any creek or pond in this State between the first of May and the tenth of August in any year; or at any time use a dredge in taking oysters in any such creek or pond; or to export or carry from this State, for sale, any oysters taken or caught in any such creek or pond, under penalty of forfeiting ten dollars. Any boat, or vessel, taking such oysters out of the State, shall be liable for the aforesaid penalty; and any boat, or vessel, using a dredge in any such creek or pond, shall be forfeited, together with her tackle, apparel and furniture, and may be seized, prosecuted and sold, as provided in Section 1, with the same mode of proceeding, and under the same penalties.
SECTION 6. If any person shall sell more than five bushels of oysters, caught in Mispillion creek, to any one, with intent that they shall be taken out of this State, such person shall forfeit oysters and pay twenty dollars.
SECTION 7. Any citizen of this State may appropriate to his own use a part, not exceeding one acre, of the bottom of any of the streams or waters of this State, for planting oysters; and, having marked the same by stakes, or other visible boundaries, and planted oysters therein, it shall be unlawful for any other person to catch or take the oysters therein growing, under penalty of forfeiting twenty dollars to the owner of such plantation. But no place shall be so appropriated where oysters are already growing, or so as to impede navigation; nor shall more than forty feet square of Lewes creek, opposite Lewes, be appropriated by any person. Section 4 of this chapter shall not apply to oysters so planted.
SECTION 8. It shall be unlawful for any person, not a citizen of this State, to lay out, or bed oysters in any of the waters of this State, or on the flats, shore, or banks of any river, or creek thereof, for any purpose whatever, under penalty of forfeiting twenty dollars; and any oysters, so laid out, or bedded, shall be forfeited, and may be lawfully taken and carried away by any person whatever.
SECTION 9. No person shall take or destroy any terrapin eggs found, or collected, on or near the shore of any bay, river, or stream in this State, where the water is salt, or upon any salt marsh, or beach, under penalty of forfeiting ten dollars; and anyone having possession of such eggs, shall be deemed to have taken them there, unless he proves the contrary.
Game, Wild Fowl &c.
SECTION 1. It shall be unlawful for any person not being a citizen of this State, to catch, take or kill, by himself or by his agent, or as the agent for, or in the employment of any other person, whether such other person be or be not a citizen of this State, any fish, wild goose, wild duck, or other wild fowl upon any of the waters of this State, or upon any marsh or land bordering thereon, or to enter upon such waters, land or marsh for such unlawful purpose, and any person offending against the provisions of this section shall be deemed guilty of a misdemeanor and shall pay a fine of not less than fifty dollars, and not more than one hundred dollars, and any boat or vessel, with her tackle, apparel and furniture, and any gun, decoy-geese, or decoy-ducks, used with the consent or knowledge of the owner thereof, shall be forfeited, and may be seized, condemned sold as hereinafter provided. But this section shall not prohibit a citizen of this State, nor any person being a citizen thereof regularly in his employment from catching, taking or killing any such fish or wild fowl upon any of said waters, or land and marsh. But this section shall not prohibit any owner of any marsh or land bordering thereon, though not a citizen of this State, from catching, taking or killing any fish or wild fowl upon marsh or land so owned by him and the waters adjacent thereto. It shall be the duty of any justice of the peace, upon affidavit made that Justice to a person has violated this section, forthwith to issue his warrant, directed to the sheriff, or in his absence to any constable, commanding him to arrest the person so charged and to bring him forthwith before such justice for trial.
If upon such trial the said justice shall find that the person arrested has violated this section, he shall thereupon fine such person in a sum not exceeding one hundred dollars and not less than fifty dollars and shall commit him to the custody of said sheriff, or constable, who made the arrest, until said fine and costs are paid:
Provided, that if the person o arrested shall, upon appearing before the justice, elect in writing to be tried by a jury in the Court of General Sessions of the Peace and Jail Delivery, and shall enter into a recognizance to the State of Delaware, with one or more sufficient sureties, in the sum of two hundred dollars for his appearance at said court for trial, then, and in that case the said justice shall have no further jurisdiction, and shall return the said affidavit, election and recognizance to the Clerk of the Peace in and for the county in which such offence is.
The said Clerk of the Peace shall, on the first day of the term of said court to which they are returned, deliver the said affidavit, election and recognizance to the Attorney General, who shall cause the person charged to be prosecuted as in other cases of misdemeanor.
The said recognizance shall be according to the form prescribed in Section 8 of Chapter 97 of the Revised Code, except, that after the word "answer," in the ninth line of said form it shall be as follows "a certain charge made in and by the affidavit of C. D. that he the said A. B. has violated Section 10, of
Chapter fifty-five of the Revised Code of the State of Delaware, entitled "For the protection of fish, oysters and game," and shall not depart the Court without leave thereof, then this recognizance to be void, otherwise to be and remain in full force and virtue. Taken, signed and acknowledged before me a justice of the peace for said county, the__ day of__, A.D. 18__.
Duty of It shall be the duty of any justice of the peace, upon affidavit made that a boat or vessel, gun, decoy-geese or decoy-ducks is or are used or have been used in violation of the provisions of this section, forthwith to issue his warrant to the sheriff, or, in his absence, to any constable, commanding him to seize and detain such boat or vessel, and all guns and decoys used as aforesaid for trial before said justice; and if, upon such trial, the justice shall find that such boat, vessel, gun, or decoys have been or are used with the consent or knowledge of the owner thereof, in violation of this section, he shall thereupon issue his warrant to the sheriff or constable who seized such property, commanding him to sell the same at public auction, upon five days notice, posted at five several places in the county where said property is to be sold, and to divide the proceeds of such sale, after deducting costs and charges, equally among the captors and informers ; Provided that in the case of the condemnation of such
Appeal, property an appeal shall be allowed from the judgment of said justice, if applied for within ten days, to the Court of General Sessions of the Peace and Jail Delivery, on security being given by bond and sufficient surety in the full value of the property condemned, conditioned, to be void if such judgment shall be reversed by said court. Upon such appeal a jury trial shall be had on the issue whether the property seized has been used in violation of this section, and if it be found in the affirmative, the court shall affirm the judgment of the justice, otherwise such judgment shall be reversed and the property seized shall be sold or released accordingly.
The Attorney General shall appear for the captors and defend the appeal.
The sheriff or constable, in the execution of either or both of said warrants, may, if necessary, summon the posse comitatus armed with fire-arms and ammunition, and may require the assistance of any other boat or vessel on paying or tendering just compensation therefor. It shall not be necessary that either of the affidavits or warrants herein provided shall state the name of the person charged, nor of the boat or vessel, nor of the owner or owners of such boat or vessel, or other property; such name or names may be inserted in the proceedings after the arrest or seizure. If any person shall resist or oppose the sheriff or constable, or other persons in the execution of said warrant or warrants, or shall resist the lawful seizure of such boat, vessel, or other property, such Person shall be deemed guilty of a misdemeanor and shall pay to the State a fine of one hundred dollars. The said sheriff or constable, to whom such warrant is delivered for execution, may execute the same in either county of this State, and if, after due diligence, the sheriff or constable cannot arrest the person charged as aforesaid, because of his absence from the State, he shall return said warrant or warrants to said justice with the indorsement "non est inventus" thereon, whereupon the said justice shall forthwith deliver the said affidavit and warrant to the Clerk of the Peace for the county wherein such offense is charged to have been committed.
It shall be the duty of the Attorney General to cause the person therein charged to be indicted, and with all others indicted under this chapter who are out of the State to be demanded and brought to trial. The sheriff or constable shall be entitled to five dollars per day when the person charged shall be brought for trial, and each person summoned by him and rendering him aid to one dollar per day ; but if the person charged shall not appear before said justice, the said officer shall be entitled to two dollars per day, and the persons summoned and rendering him aid to fifty cents per day each. The justice of the peace shall be entitled to fifty cents for taking and filing said affidavit, and issuing said warrant, and to one dollar for each trial and judgment under this section, all which fees and costs shall be paid by the person convicted or the property condemned and sold as aforesaid, or by the State in case of acquittal; Provided however that this section shall be subject to the license laws of this State in regard to fishermen.
SECTION 11. That if any person shall kill, take or destroy, sell, or expose to sale, or have in his or her possession after the same has been killed, in either of the counties of Kent or Sussex, any partridge, pheasant or rabbit between the fifteenth day of February and the first day a November, or in the county of New Castle between the first day of January and the first day of November, or any woodcock, in either of the said counties, between the first day of January and the first day of July, in any year, such person shall be deemed guilty of a common nuisance, and upon conviction thereof before any justice of the peace in this State shall be fined five dollars for each ,bird or rabbit so killed, taken or destroyed, sold, or exposed to sale, or in his or her possession after the same has been killed, and if such person shall fail or refuse to pay such fine and all cost immediately, the said justice shall forthwith commit him to the custody of the sheriff until the same are paid, one-half of said fine for the use of the State, the other half for the informer. Provided, that this section shall not prohibit any person from killing game on his own land at any time.
SECTION 12. That if any person shall, at any time or place within this State, take, kill or destroy in any manner whatever any partridge, pheasant, woodcock, or other game bird in the night time, that is to say, within the time from one hour after sunset until one hour before sunrise, and every person found with gun, dog or net between the hours aforesaid having in his or her possession any partridge, pheasant, woodcock or other game bird shall be deemed to have taken or killed the same in violation of this section unless the contrary be proved, or if any person shall, at any time or place within this State, take, kill or destroy any partridge, pheasant, woodcock, or other game bird, with or by means of any net, trap, or snare, every such person shall be deemed guilty of a common nuisance, and upon conviction thereof before any justice of the peace in this State shall be fined five dollars for each partridge, pheasant, or other game bird so killed, taken or destroyed, and if such person shall fail or refuse to pay such fine and all costs immediately, the said justice shall forthwith commit him to the custody of the sheriff until the same are paid, one half of said fine for the use of the State, the other half for the informer.
SECTION 13. If any person shall, within this State, take, kill or destroy any rabbit or hare by the use of the ferret, or shall have in his possession any ferret while hunting for or after any hare or rabbit, or shall be associated in hunting for hares or rabbits with others who shall have in their possession or under their control any ferret, such person shall be deemed guilty of a common nuisance, and upon conviction thereof before any justice of the peace in this State shall be fined twenty-five dollars for each offence, and if such person shall fail or refuse to pay such fine and all costs immediately, the said justice shall forthwith commit him to the custody of the sheriff until the same are paid; one half of said fines for the use of the State, the other half for the informer.
SECTION 14. If any person not a citizen of this State shall himself or by his agent, or by acting as the agent for or in the employment of another person, whether such other person be or be not a citizen of this State, kill, take or destroy any partridge, pheasant, woodcock, or tolan, or reed-bird, rail, or rabbit, in this State, upon land not owned by himself, without license from the owner or occupant thereof, such person shall be deemed guilty of a common nuisance, and, upon conviction thereof before any justice of the peace in this State, shall be fined five dollars for each bird or rabbit so killed, taken and destroyed, and shall be liable as a trespasser, and if such person shall fail or refuse to pay such fine and all costs immediately, the said justice shall forthwith commit him to -the custody of the sheriff until the same are paid.
If any such person shall have in his possession such bird or rabbit it shall be evidence of his having killed, taken or destroyed the same, or that it was killed, taken or destroyed for his use in violation of this section, unless otherwise proved; one half of said fine for the use of the State, the other half for the informer.
SECTION 15. If any person within either of the counties or this State shall kill, take, or destroy, upon lands not owned by himself, any of the following birds, viz : Robin, blue-bird, martin, swallow, mocking-bird, thrush, wood-pecker, sparrow, wren, whip-poor-will, cat-bird, night-hawk, wake-up, dove, cuckoo, king-bird, oriole, fire or red-bird, yellow-bird, humming-bird, ground-robin, field-lark, sky-lark, brown-thrasher, flicker, sapsucker, or other insectivorous bird, or shall willfully take or destroy the eggs or nest of any of the aforesaid birds, such person shall be deemed guilty of a common nuisance, and, upon conviction thereof before any justice of the peace in this State, shall be fined one dollar for each bird so killed, taken, or destroyed, or for each nest of birds-eggs taken or destroyed, as aforesaid ; and every person having such bird in his possession, shall be deemed to have taken, killed or destroyed the same in violation of the provisions of this section, unless the contrary be proved ; and if such person shall fail or refuse to pay such fine and all costs immediately, the said justice shall forthwith commit him to the custody of the sheriff until the same are paid; one-half of said fine for the use of the State and the other half for the informer.
SECTION 16. If any person or person shall enter upon any lands not owned by himself with gun and dog, or with gun alone, for the purpose of shooting any kind of birds or game without first obtaining permission to do so by the owner or occupant, he shall forfeit and pay a fine of five dollars; and if he shall not pay the said fine he shall forfeit his gun until redeemed, as hereinafter provided. The justice of the peace shall hold the said gun for thirty days, for the purpose of giving the owner time to re deem it by paying the fine imposed by law; at the expiration of said time it shall be publicly sold, and so much of the proceeds as it is necessary shall be appropriated to the payment of said fine, and the balance to be returned to the owner of the gun. That all said fines shall be paid into the State Treasury.
SECTION 17. That the justices of the peace in this State shall have plenary jurisdiction in all cases of the violation of any of the provisions of Sections 11, 12, 13, 14, 15 and 16 of this act; and it shall be the duty of any justice, upon information, in writing, to him that a person has violated, or is violating any of the provisions of the said sections, to issue his warrant, directed to the sheriff; or to any constable, to arrest such person and bring him before said justice for trial. If, upon such trial, the said justice shall find that the person arrested has violated any provisions of said sections, he shall thereupon impose the fine and penalties in said section mentioned. If any justice of the peace shall refuse or neglect to forthwith issue his warrant, as directed an officer to in this section, and if any sheriff or constable shall refuse or neglect to promptly execute such warrant, he shall be deemed guilty of a misdemeanor, and shall, upon indictment and conviction, be fined fifty dollars for each offence.
SECTION 18. All penalties and forfeitures incurred under this chapter shall, if not otherwise herein appropriated, belong to the informer, and be for the use of any one who will sue for the same in his own name, and the same shall be recoverable before any justice of the peace if under one hundred dollars.
Passed at Dover, April 9, 1873.
ERRATUM- The word "twenty" in the sixth line of Section 7 of this chapter, should be "fifty" as amended by Chapter 63, Volume 14.