412 ARTICLE 72.

less than the prohibited size, and all shells shall be considered as not having
been culled according to the provisions of this Section for the purpose of
this Section shall be declared to be unmerchantable oysters; and when
oysters measuring less than three inches are adhering so closely to the shell
of a marketable oyster as to render removal impossible without destroying
the small oysters, then such oysters, including the marketable oyster or
oysters, shall be returned to the bed or bar from which they were taken.
And it shall be unlawful for any person to take, buy or sell the small
oysters and shells from the natural rocks, beds and shoals as aforesaid, or
to take, buy or sell or have in possession oysters less than three inches in
length from hinge to mouth. Whenever any inspector or other officer shall
have reason to believe that this Section has been violated with the reference
to the culling of oysters, such inspector or other officer is hereby authorized
to examine the cargo of any boat or vessel, and if upon examination of said
cargo the said inspector or other officer shall find that five per centum or
more of said cargo shall consist of shells and oysters whose shells measure
less than three inches in length, measuring from hinge to month, the captain
of the boat or other person in charge of said boat shall be deemed to have
violated this Section, and upon conviction, if of a dredge boat or vendor of
oysters, shall be fined not less than one hundred dollars, or confined in jail
not less than thirty days nor more than six months, either or both, and in
addition to such fine or imprisonment said cargo shall be confiscated and
returned to the natural beds under the supervision of the oyster inspector
or other officer making the arrest, and at the expense of the violator, which
expense shall be in addition to the fine imposed and collectable in the same
manner, and the boat or vessel on which said oysters are found shall be
held as security for the payment of said fine; if the boat in which only
oyster tongs are used, the said captain or other person in charge shall be
fined not less than fifty dollars or confined in jail not less than fifteen days
nor more than three months, either or both, and said cargo confiscated and
returned to the natural beds under the supervision of the oyster inspector
or other officer making the arrest. And the boat or vessel on which said
oysters are found shall be held as security for the payment of said fine,
provided, however, that when any person shall be found with oysters in
violation of this Section, he shall be presumed to be a dredger or vendor of
oysters, and if he claims to be a tonger, the burden shall be upon said per-
son to show that he is a tonger only. In case there is an appeal or waiver
of trial before Justice of the Peace, in order to provide for the disposition
of any oysters that have been declared unmerchantable, the cargo of oysters
shall remain in the possession or custody of the Deputy Commander, In-
spector or other officer making the arrest until the captain of the boat or
vessel or the packer shall have reculled the oysters in question; and the
officer under whose supervision the re-culling is done, after ascertaining
the quantity of unmerchantable oysters and shells so culled out, shall give
the captain or other person in charge of said vessel or packing house, a
certificate showing the number of bushels of such unmerchantable oysters
and the said captain or other person shall return said unmerchantable oys-
ters so culled out to the natural beds or bars under the supervision of the