which can be properly ascertained in the social intercourse which usually accompanies courtship. If he changes his mind and refuses to marry her for a defect which is open to observation, and which he might have ascer tained before by reasonable care, it is no defense to an action for breach of promise of marriage. While this is so he has a right to presume that her physical condition is such that she is capable of giving him the intercourse between the sexes which is usual in the marriage state. He has a right to presume so because the defect, if it exists at all, is a concealed one, and not open to his observation. To conceal such a thing from him until after mar. riage would be a fraud. It would be a fraud to sell a cow with such a defect without making it known to the purchaser. In this case, if the defendant is to be believed, the plaintiff informed him of the difficulty, and promised to have it remedied by a surgical operation. This, as before stated, was not done, and we do not think the defendant was in duty bound to marry her, and afterward call in a surgeon for such purpose. He was entitled to have a wife capable of copulation in the usual way when he married her. We must not lose sight of the fact that we are dealing with a marriage contract pure and simple, and that contract did not require him to take an imperfect woman, and to involve himself in the expense and risk of such an operation. We are of opinion that the plaintiff's failure to perform her promise to have the operation performed absolved the defendant from his contract. If, on the other hand, the defendant is not believed, then the plaintiff is in the position of having a concealed defect, of a nature to at least seriously impair the defendant's satisfaction in any sexual commerce with her, and not informing him of such defect. This, as before stated, would have been a fraud upon him, and would of itself avoid the contract. It is a mistake to suppose, as was assumed in the point and affirmed by the court, that the impediment must be of such a nature as would be a ground of divorce after marriage. We are not now dealing with a question of divorce. That is a subject that is regulated by statute, and has no necessary relation to the case in hand. We are considering a contract to marry; a contract which calls for the richest good faith on both sides, and which neither party has the right to enforce against the other, if incapable of performing the full marital duties. A man does not court and marry a woman for the mere pleasure of paying for her board and washing. He expects and is entitled to something in return, and if the woman with whom he contracts be incapable by reason of a natural impediment of giving him the comfort and satisfaction to which as a married man he would be entitled, there is a failure of the moving consideration of such contract, and no court ought to enforce it by giving damages for its breach." In addition to the implied representation that the parties are fit for sexual intercouse is the further representation that neither is in such a condition that such intercourse involves unusual peril to the other. Therefore, where a woman was so afflicted with syphilis that intercourse with her was at the peril of contracting this loathsome disease, her husband was held entitled to a divorce, though there was no impediment to perfect sexual intercourse with him, and by it she had conceived and borne a child, also afflicted by the same hideous disorder: Ryder v. Ryder, 66 Vt. 158. As to the implied representations involved in a contract to marry, some of them, as we have seen, are also involved in the contract of marriage so as to entitle the party to whom the law deems them to have been made to a divorce or to an annulment of the marriage in case of their falsity. This AM. ST. REP., VOL. XLIV. -25 consequence, we venture to assert, does not follow any express representation, except it is upon a subject in which in the absence of words a represen. tation is implied, the falsity of which entitles the party to whom it was made to be released from the marriage. But as appears from the principal case an express representation may, though it is not concerning a marital ability or obligation, be regarded as material, and therefore as warranting a party to whom it was made in refusing to comply with his promise of marriage induced thereby: Foote v. Hayne, 1 Car. & P. 545. The cases upon the subject are so infrequent that they do not furnish much basis for the formulation of any rule by which to determine what representations are material and what immaterial. In an English case in which the defense was interposed that the defendant had made the promise under false and fraudulent representations of the former situation, and circumstances of the plaintiff's family, it was left "to the jury to say whether the defend. ant was induced to make this promise or to continue this connection by false representations or willful suppression of the truth; for if he was induced to continue the connection by the misrepresentation of willful suppression of the real state of the circumstances of the family and previous life of the plaintiff," then he was at liberty to withdraw from his engage. ment: Wharton v. Lewis, 1 Car. & P. 529. The principal case is a very important one upon this branch of the subject as well as upon the effect of mere silence respecting material facts. Most of the other opinions of the courts discussing this question are in a large degree mere dicta, while in the principal case the effect of false statements, and the failure to make any statement at all concerning material facts, were both involved. It affirms that statements regarding plaintiff's family and parentage, respecting their race and position, were material, as also was the cause of the divorce of plaintiff from her husband, and further. more, and what is more important, that if either party voluntarily undertakes to inform the other upon any material matter, the information must not only be true, but also not be given in such a way as to suppress material qualifying facts or to otherwise produce a false impression. That neither party is under any obligation to make any voluntary statements respecting his or her past life, position, or fortune, or as to any other fact not involving want of chastity or physical unfitness for the marriage state, is clear from the other authorities as well as from the principal case. Thus where a man interposed the defense that at the time of his engagement to marry the plaintiff she was without his knowledge already engaged to another man, and that had the defendant known of this engagement he would not have made the promise to marry the plaintiff, the court held this defense to be insufficient. In assenting to this judgment Lord Chief Justice Cockburn said: "It is said that the contract of marriage is one uberimæ fidei. I agree that there are many things which a man might desire to have communicated to him if they exist at the time of making the contract, such as that the plaintiff is in debt or subject to other liabilities, or some circumstances relating to her person, her temper, her disposition, the discovery of which might not yet entitle the defendant to refuse to fulfill his engagement. It might be right to disclose such things; and yet it has never been held that the discovery of them justified a party in breaking his contract. Where it turns out that the woman is of unchaste conduct, which goes to the very root of the con tract of marriage, there, from the excess and necessity of the case, the man is released from his contract. But nothing of the sort is disclosed here: there is no imputation on the virtue or honor of the plaintiff, and the case does not fall within the principle which makes the misconduct of the woman an answer to the action": Beachey v. Brown, El. B. & E. 796; 29 L. J. Q. B. 105. COMMONWEALTH V. MULHall. [162 MASSACHUSETTS, 496.] A MUNICIPAL CORPORATION MAY BY ORDINANCE DECLARE THAT NO PERSON SHALL CARRY OR CAUSE TO BE CARRIED IN ANY VEHICLE in any street a load the weight of which exceeds three tons, unless such load consists of an article which cannot be divided, if a statute of the state provides that the common council of such city may make such rules and regulations for the passage of carriages, wagons, carts, trucks, and other vehicles in and through the public streets as they may deem necessary for the public safety and convenience, nor can the enforcement of such ordinance be defeated by evidence that the wagon in which was a load in excess of that permitted by the ordinance was carrying it from a point on one side of the city to a point on the other side, and that the load was not an excessive one for the horses employed in drawing it. PROSECUTION for violating an ordinance of the city of Boston. The defendant offered to prove that at the time of the alleged offense he was a resident of the city of Quincy in the county of Norfolk; that he was hauling a load of stone from the quarry of his employer in Quincy through Boston to Cambridge; that an average and fair load for a team of four horses was seven tons, and for a team of two horses four tons, and that a large number of teams were daily in use hauling stones from the quarries of his employer in Quincy to and through the city of Boston; most of the loads were hauled by four horses, and that the effect of limiting each team to a load of three tons would be to greatly increase the cost of hauling and practically destroy the business of his employer. The judge ruled that the testimony so offered, s0 far as competent, would not constitute any defense to the prosecution and sustained the ordinance in question, and the defendant alleged exceptions. G. W. Wiggin & P. H. Cooney, for the defendant. F. E. Hurd, for the commonwealth. 497 KNOWLTON, J. By Public Statutes, chapter 53, section 15, it is provided that "the mayor and aldermen and selectmen may make such rules and regulations for the passage of carriages, wagons, carts, 498 trucks, sleds, sleighs, horse cars, or other vehicles, or for the use of sleds or other vehicles for coasting in and through the streets or public ways of a city or town, as they may deem necessary for the public safety or convenience, with penalties for the violation thereof not exceeding twenty dollars for each offense." This statute was originally enacted in similar language in the statutes of 1875, chapter 136, section 1. The ordinance which the defendant is alleged to have violated is as follows: "No person shall carry or cause to be carried on any vehicle in any street a load the weight whereof exceeds three tons, unless such load consists of an article which cannot be divided." The statute above quoted has reference to the safety and convenience of the public in the use of the streets. Many of the streets of Boston are greatly crowded, not only with pedestrians, but with vehicles of almost every kind. It cannot fairly be said that this ordinance has no reference to the convenience or safety of the public who use the streets. We can see that very heavily loaded teams, drawn by four or six horses, in the most crowded parts of the city, might seriously interfere with the convenient use of the streets by others. If the ordinance is within the class of ordinances in regard to which this statute permits the mayor and aldermen to exercise their judgment and discretion, we cannot declare it void on the ground that we might have decided the question in reference to the necessity of the ordinance differently. If they deem such an ordinance necessary for the public safety or convenience, and if it is not a clear invasion of private rights secured by the constitution, it must stand as a regulation made under legislative authority. We think the facts offered to be proved do not take the case out of the field of regulation by the legislature, or by the mayor and aldermen as a local tribunal acting under the authority of the legis lature. If it appeared that the ordinance could have no relation to the safety or convenience of the public in the use of the streets, the fact that the mayor and aldermen declare the regulation to be necessary would not give it validity. But we cannot say that they were in error in deciding that the use of heavily loaded vehicles is a matter affecting the public in the use of the streets, which may be regulated under the statute, nor can we say that the ordinance is any thing more than a regulation, upon the necessity of 499 which their decision is final: Commonwealth v. Stodder, 2 Cush. 562; 48 Am. Dec. 679; Commonwealth v. Robertson, 5 Cush. 438; Commonwealth v. Fenton, 139 Mass. 195; Commonwealth v. Plaisted, 148 Mass. 375; 12 Am. St. Rep. 566; Commonwealth v. Ellis, 158 Mass. 555. Exceptions overruled. USE OF MUNICIPAL CORPORATIONS-POWER TO PASS ORDINANCES STREETS.-Municipal ordinances expressly authorized by special and definite legislative authority are upheld, unless in conflict with the constitu tion: Phillips v. Denver, 19 Col. 179; 41 Am. St. Rep. 230. Municipal corporations may pass by-laws and ordinances reasonable in character, and not inconsistent with their charter or the general principles of the law of the land: City of Tarkio v. Cook, 120 Mo. 1; 41 Am. St. Rep. 678, and note. The power to control public streets and to provide for the proper adjustment of conflicting rights and interests therein is a police power, the exercise of which may be delegated to municipal corporations: People v. Squire, 107 N. Y. 593; 1 Am. St. Rep. 893; St. Louis v. Bell Telephone Co., 96 Mo. 623; 9 Am. St. Rep. 370. COMMONWEALTH V. DAVIS. [162 MASSACHUSETTS, 510.] CONSTITUTIONAL LAW-FREEDOM OF SPEECH.-A MUNICIPAL ORDINANCE PROHIBITING ANY PERSON FROM MAKING ANY PUBLIC ADDRESS in or upon any of the public grounds of the municipality, except in accordance with a permit from the mayor, is not unconstitutional or invalid as abridging freedom of speech. PROSECUTION against the defendant for making a public address upon certain public grounds in the town of Boston commonly known as the "Common" without a permit from the mayor of the city. The section of the ordinance upon. which the prosecution was based declares that "no person shall, in or upon any of the public grounds, make any public address, discharge any cannon or firearm, expose for sale any goods, wares, or merchandise, erect or maintain any booth, stand, tent, or apparatus for purposes of public amusement or show, except in accordance with a permit from the mayor." The defendant, having been convicted, alleged exceptions. J. F. Pickering and J. W. Pickering, for the defendant. 511 HOLMES, J. The only question raised by these exceptions which was not decided in the former case of Commonwealth v. Davis, 140 Mass. 485, is one concerning the |