The motion to quash was properly overruled. 1. The allegation in the indictment that Welch was the superintendent of the drawbridge, “ duly and legally appointed,” is a sufficient statement of the fact. It was not necessary to state by whom he was appointed.
2. The allegation that the bridge was the drawbridge of the Boston and Lowell Railroad Corporation, a corporation duly and legally established by law, and was situate in the railroad of said corporation and over the waters of Charles River, and was “ duly erected and legally maintained as such drawbridge by said corporation,” is a sufficient allegation that that corporation had a right to build a railroad across said river, and to maintain a drawbridge over the river.
3. The indictment sets forth that the defendant made application to the superintendent to pass the draw with his tug-boat, and that at the same time a second vessel, to wit, the schooner Fawn, made application to the superintendent to pass the draw; that the superintendent decided that the schooner had the priority of right to pass the draw first, and before said tug-boat, and communicated said decision to the defendant; and that the defendant, knowing that the superintendent had full authority to make said decision, and that he had made it, wilfully refused to be governed by it, and attempted to pass the tug-boat through the draw first, and wilfully refused to withdraw his tug-boat to the rear and astern of the schooner, and wilfully threatened the superintendent to interfere with and to jam said schooner and to block up and impede said draw. This is a sufficiently precise allegation that the defendant disobeyed the order of the superintendent. The statute gives the superintendent absolute power to decide which of two vessels shall pass the draw first, when two apply at the same time. St. 1874, a. 372, § 110. The construction contended for by the defendant, that the power given to the superintendent is merely to decide when two vessels apply to pass simultaneously, or abreast, is manifestly incorrect. The words “ at the same time ” refer clearly to the time of the application, not to the time of passing.
4. The first count sets forth a violation of the provision of § 110, that commanders of vessels applying to pass the draw shall be governed by him as to priority of right, when two or more vessels apply to pass at the same time.
*145. It is unnecessary to consider whether the indictment is bad, as having two counts charging different offences depending on the same facts, without an averment that the different counts are different descriptions of the same transaction, because, the jury having negatived the second count, it is as if it had never been inserted in the indictment. Commonwealth v. Packard, 5 Gray, 101. Commonwealth v. Cain, 102 Mass. 487.
The instructions asked for by the defendant were properly refused. The statute on which he relied, St. 1872, c. 221, is intended merely to regulate the opening of drawbridges for the passage of vessels propelled by steam, and has no reference to delays of such vessels in consequence of the presence of sailing vessels at the draw, or by reason of accidental obstructions.
The instructions given were correct. There does not appear to have been any conflict of testimony as to the powers and authority of the railroad corporation under its charter; and the" fact that it had built the bridge and draw, and maintained them for fifteen or twenty years, was evidence on which the jury might find that the structures were duly and legally erected and maintained. Commonwealth v. Bakeman, 105 Mass. 53.
The piers were a part of the structure provided for by the act which authorized the construction of the drawbridge, and they and the space between them were parts over which the superintendent had authority, so far as was necessary for regulating the proper passage of vessels through the draw in the order prescribed by him. The defendant was legally bound to obey the direction of the superintendent, and permit the sailing vessel to pass the draw first, and if his tug was in such position as to interfere with such passage, and he could withdraw it, he was bound to do so. Exceptions overruled.