McTighe vs. McLaughlin et al., Etc. tember 5, 1914. It might be well maintained by defendants that no action would lie for money had and received upon that contract, but that, if plaintiff is entitled to any remedy, it is in an action of trespass for failure to require such payment, in which plaintiff would be obliged to prove at least nominal damages in order to recover. Assuming, however, that the defendants considered the $1,000 note already in their possession as the hand money required to be paid by the terms of the second and effective agreement (they having earned their commissions upon the making of the agreement), the money represented by the note, though nominally the property of plaintiff, was, the instant they received it, properly applicable to the payment of their then due compensation. Had they actually received cash, and instantly applied it to the extinguishment of their claim for commissions, and thereupon accepted the purchaser's note, holding it in lieu of the actual money, could it be said that a fraud had been committed upon plaintiff? For the purposes of the transaction, the hand money having been paid and the defendants being instantly entitled to it, it was immaterial, so far as the plaintiff was concerned, whether it was paid by cash or note or paid at all so long as the claim for commission was extinguished. We mean immaterial in the sense that thereby the defendants did not (regardless of the fact that no loss or damage was sustained by plaintiff), ipso facto forfeit their commissions. The payment or non-payment of $1,000 may have been material in the ordinary sense, but not in the sense of the cases hereafter referred to. We are convinced that the salutary and necessary doctrine of Greenblatt vs. Fox, 59 Supr. Ct., 53, and of the cases cited there, is not applicable under the facts of this case. The "concealment" complained of was not a deliberate concealment at all, but apparently an inadvertence due to the position at once assumed and persisted in by defendants that the $1,000 was commissions earned by them and paid to them, and that it was quite unimportant whether plaintiff knew the details or not. So far as the plaintiff is concerned, the only apparent purpose in requiring the hand payment was to evidence the good faith of the purchaser, not his ability to pay, since she was accepting his contract to pay $89,000.00 additional without any apparent hesitation. The note was considered good by the defendants, as they staked their entire compensation on it and paid themselves with it, and their acceptance of it did not occasion their client any loss or even inconvenience. This is true even though there was an apparent departure from the strict letter of the contract. Notwithstanding such a condition, plaintiff demands $1,000 and the forfeiture of defendants' commission, or a total penalty of $2,000.00, without having disclosed even nominal damages. Plaintiff must show some equity in herself before the equitable principles laid down in the cases mentioned shall be applied with all thei severity to honest, even though mistaken, brokers. She bases the right to recover in this case practically upon the proposition that in the inexpressibly infinitesimal fraction of a second in which title to the hand money in question rested in her, which in the same instant vested by its application in the defendants, she might have, had she known the facts, repudiated the contract, because the medium of payment was not cash. We refuse the appeal and the motion for judgment for plaintiff on the whole record. Alguire vs. Keller et al. Mechanics' Lien- -Excavation- -Failure to Complete Building-Act of June A mechanics' lien cannot be filed for excavating a cellar for a building, where such contract was independent of any other contract for the erection of a building thereon. The right to file a lien is only incidental to the land, and cannot be sustained for a mere excavation or a hole in the ground. The words "or other improvement," as used in Section 19 of the Act of June 4, 1901, P. L. 431, relate only to other structures that are necessarily incident to or part of the main structure. A motion for judgment non obstante veredicto will be sustained where it appears that a mechanics' lien could not be filed for failure to complete the work or other cause that would invalidate the lien. In re Rule for Judgment Non Obstante Veredicto and New Trial. No. 2337 July Term, 1914. C. P. Allegheny County. A. J. Eckles, for plaintiff. John A. Metz, John W. Dunkle and Alex E. Goss, for defendant. DAVIS, J., May 17, 1916.-This action is a scire facias sur mechanics' lien. On the trial of the case the defendants presented a point for binding instructions, which was refused. The plaintiff entered into an oral contract with Oswald Keller, one of the defendants, to excavate a cellar for a contemplated building. The facts set forth in the lien were made in this proceeding part of the sworn statement of claim. The lien set forth "that the work was begun November 18th, 1912;" also "that the date of the completion of the work or when the last work was done by the claimant was May 14, 1913." The lien was filed July 11, 1913. The defendant Keller conveyed the land to Edward F. Gerber, the other defendant, May 17, 1913, and his deed was at once placed on record. No evidence was offered that this conveyance was not made to a bona fide purchaser. The evidence was that plaintiff had not completed his contract and had stopped work in the month of December, 1912, and had filed his claim for the uncompleted work; that plaintiff had on or about May 14, 1913, sold out of the excavation a few loads of dirt, for which he had made no charge in the lien. He further testified that the defendant Keller had directed him to suspend work from December, 1912, to the following spring, and that in the month of June, prior to the filing of the lien, the defendant Keller notified him to not proceed further with his contract. The testimony further disclosed that the plaintiff's contract for the excavation of the cellar was independent from any other structure contract or work; that no other contracts were entered into for the construction of the building or any part thereof. The plaintiff's right to lien or his right to recover on the lien filed cannot be sustained for the following reasons: (a) That his work under his contract was never completed; (b) that the right to a lien cannot be maintained for a cellar excavation when no part of the building structure was contracted for or commenced on the land. The plaintiff on the trial of the case contended that the defendant Keller having ended the contract in the month of June his right to file a lien attached of, and extended six months from, that time. The defendant Keller had conveyed all his interest in the land to Gerber and the plaintiff had information of that fact. No act of Keller's would bind Gerber, the defendant purchaser, without the consent or a waiver of completion on the part of Gerber. Plaintiff, therefore, had no right to file a lien until he had completed his entire contract. Alguire vs. Keller et al. Plaintiff further had no right of lien for an excavation made for the purpose of a cellar where a building was never erected or commenced. The right to a mechanics' lien is only incidental to the land, and when a building has been erected and the building is destroyed by fire or accident, the right to a lien for labor done and material furnished in and about the erection of the building ceases to exist: Presbyterian Church vs. Stettler, 26 Pa., 246; Wigton vs. Brooks' App., 28 Pa., 161. A number of cases have been cited by the plaintiff where a building was under construction and either abandoned by the contractor or stopped by the owner, and the right to file a lien for labor done or material furnished has been sustained: Linden Steel Co. vs. Mfg. Co., 158 Pa., 238; Burr vs. Mazer, 2 Supr., 436. These cases are based on the equitable principle of estoppel that the owner himself or acting through his agent, the contractor, cannot take advantage of his own default. No case has been cited where a lien has been sustained for a mere excavation or a hole in the ground. The plaintiff contends that Section 19 of the Act of 1901, P. L. 431, relating to mechanics' claims, authorizes the filing of his lien. This secrion provides, inter alia: "And the same right of recovery, by lien or otherwise, shall exist where the structure or other improvement is never completed, but through no fault of the claimant, unless it be destroyed by fire or other casualty." Plaintiff contends the words "or other improvement" takes the case at bar out of the rulings of the cases cited supra under the Mechanics' Lien Act of 1836. We are of opinion that a proper construction of the words "or other improvement" relates only to other structures that are necessarily incident to or part of the main structure. To give the words any other construction would extend the right to lien that did not exist under the Act of 1836, and would make that part of Section 19 of the Act of 1901 unconstitutional and void in contravention of Section 7 of Article 3 of the Constitution of 1874. The plaintiff had the right to file a lien if the building was constructed, or, if abandoned, when partly constructed; but the right to file a lien did not attach to the land when no building or part thereof ever came into existence or ceased to exist. Mr. Justice Potter in the case of Page vs. Carr, 232 Pa., 371, says: "The result of the decisions above noted (in the opinion) is to make it clear that any provision of the Act of 1901, which is clearly divergent from and is an advance upon the law as it stood prior to the Constitution of 1874, is to be regarded as invalid." Parkhill vs. Hendricks, 53 Supr. Ct., 9. United States vs. United States Brewers' Association et al. Criminal Law- -Conspiracy- -Elections- -Motion to Quash—–DemurrerSection 83 of the Criminal Code of the United States. Section 83 of the Criminal Code of the United States prohibiting money contributions to be made by certain corporations in connection with any election at which, among others, representatives in Congress are to be voted for, is a valid exercise of the powers conferred upon Congress by the United States Constitution. The words "money contributions" are not vague and uncertain, but on the contrary their meaning is plain, and their purpose as used in Section 83 of the Criminal Code of the United States, unmistakable. Whether in any given case, an expenditure by a corporation shall be construed as "a money contribution in connection with any election" within the spirit, intent and meaning of the Act of Congress may become a question for the court or jury in the light of all the circumstances of the case at the trial, but this does not invalidate or tend to invalidate the law. Section 83 of the Criminal Code of the United States itself neither prevents nor purports to prohibit the freedom of speech or of the press. Its purpose is to guard elections from corruption, and the electorate from corrupting influences in arriving at their choice. A demurrer to indictments for conspiracy under Section 37 of the Criminal Code of the United States which indictments set forth definitely the names of the conspirators, the conspiracy to commit an offense against the United States, the nature of the offense, the time and place and the overt acts committed in and for the purpose of executing the same, will be dismissed as the averments are sufficient to sustain the indictments. Motion to Quash Indictments. Nos. 25 and 26 November Term, 1915. D. C. for the Western District of Pennsylvania. E. Lowry Humes, United States District Attorney, and Neil W. McGill, Assistant United States District Attorney, for plaintiff. Reed, Smith, Shaw & Beal, Samuel P. Tull, James Scarlet, D. P. Hibberd and James Francis Burke, for defendants. THOMSON, J., December 23, 1916.-We have here two indictments, one against a large number of Pennsylvania brewing corporations, and the other against a large number of brewing corporations of the State of Pennsylvania, and the United States Brewers' Association, a corporation of the State of New York. The indictments are similar in form and charge the defendants named therein, under Section 37 of the Penal Code, with conspiracy to violate Section 83 of the Criminal Code of the United States, prohibiting money contributions to be made by certain corporations in connection with any election at which, among others, representatives in Congress are to be voted for. To the indictments so found the defendants have demurred, and have also filed motions to quash. The motions to quash challenge the constitutionality of Section 83 of the Act of Congress, while the demurrers deny the validity of the indictments as to certain matters of substance and form. These will be dealt with in a single opinion. If Section 83 is void because it violates the Constitution, the offense therein prescribed against would not exist, and hence there could be no conspiracy to commit it. Four reasons are assigned in the motion to quash, against the validity of the statute under the Constitution: First, Section 83 was and is not, within the power of Congress to enact; second, that it is void for vagueness and uncertainty; third, that it violates the first amendment to the Constitution in that it attempts to prohibit, make criminal and punish, the freedom of speech and cf the press in the discussion of candidates and of political questions involved in such elections; fourth, that it is void and beyond the power of Congress in that it attempts to prohibit, make criminal and punish money United States vs. United States Brewers' Association et al. contributions made to a candidate for a State office, or to the agent of such candidate or in connection therewith. In order to keep this opinion within reasonable limits as to length, I shall be compelled to state my conclusions without great elaboration of the reasons upon which these conclusions are based. Section 83 in question provides as follows: "It shall be unlawful for any national bank, or any corporation organized ly authority of any law of Congress, to make a money contribution in connection with any election to any political office. It shall also be unlawful for any corporation whatever to make a money contribution in connection with any election at which Presidential and Vice Presidential electors or a Representative in Congress is to be voted for, or any election by any State Legislature of a United States Senator. Every corporation which shall make any contribution in violation of the foregoing provisions shall be fined not more than five thousand dollars; and every officer or director of any corporation who shall consent to any contribution by the corporation in violation of the foregoing provisions shall be fined not more than one thousand dollars, or imprisoned not more than one year, or both." . It will be observed that the section deals with two classes of corporations, namely, Federal corporations and those chartered under the laws of a State. The former being creatures of Federal law, there is no contention as to them that Congress has exceeded its powers. What as to corporations of the State, with which the Act also deals? Turning to the Constitution to determine what powers have been given to Congress over the subject in question, we find the following provisions: Art. 1, Sec. 2, Clause 1. provides as follows: "The House of Representatives shall be composed of members chosen every second year by the people of the several States; and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature." Art. 1, Sec. 4, Clause 1, provides: "The times, places and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may, at any time, by law make or alter such regulations, except as to the place of choosing Senators." Art. 1. Sec. 8, Clause 18, gives to Congress the power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.” Art. 6, Clause 2, provides: "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States. shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." From these provisions of the Constitution and the interpretations put upon them by the Federal Courts, certain propositions may be safely asserted: 1st. The right to vote for Federal officers is conferred by the Federal Constitution, the House of Representatives being chosen every second year by the people of the several States, the electors in each State having the Qualifications requisite for electors of the most numerous branch of the State Legislature. The elector being thus qualified by State laws, but deriving his right to vote for members of Congress from the Constitution the United States itself, it follows as a necessary conclusion that Congress has the power to protect him in the enjoyment of that right. 2nd. While under the Constitution the times, places and manner of lding elections for Senators and Representatives shall be prescribed in |