trarily determined by the association. The constitution provided for the appointment of an executive committee, whose duty it was to examine all applications for membership in and to report on the same to the association, after which it was to decide whether the applicants should be admitted or not. If they were not acceptable the applicants would not be admitted, and whether they were or not, was a matter for the arbitrary decision of the association. Its decision that they were not acceptable was sufficient to bar their entrance.

Again, it appears that plaintiffs were not eligible under the constitution, because they did not always carry stock worth $3,000, which by section 1 of article I, was made a condition of eligibility to membership. True, it was stated in evidence that this provision had not been enforced, but there was no averment or proof that it had been repealed, and there was nothing to prevent its enforcement at any time that an appli'cation was made by any one who would not come up to the condition. The case stands, therefore, that the plaintiffs had not been asked to join the association at its formation; that they did not fill the condition provided for in its constitution as to eligibility, and that if they had applied their application was subject to arbitrary rejection.

The plaintiffs, however, could not, by virtue of any agreement contained in such association, be legally put under obligation to become members in order to enable them to transact their business as they had theretofore done, and to purchase tiles as they had been accustomed to do before the association was formed.

The consequences of non-membership were grave, if not disastrous, to the plaintiffs. It has already been shown how the prices of tiles were enhanced so far as plaintiffs were concerned, and how by means of this combination interstate commerce was affected.

The purchase and sale of tiles between the manufacturers in one State and dealers therein in California was interstate commerce within the Addyston Pipe case, 175 U. S. 211. It was not a combination or monopoly among manufacturers simply, but one between thein and dealers in the manufactured article,

United

which was an article of commerce between the States. States v. EC. Knight Company, 156 U. S. 1, did not therefore cover it. It is not brought within either Hopkins v. United States, 171 U. S. 578, or Anderson v. United States, 171 U. S. 604. In the first case it was held that the occupation of the members of the association was not interstate commerce, and in the other that the subject matter of the agreement did not directly relate to, embrace or act upon interstate commerce, for the reasons which are therein stated at length. Upon examination we think it is entirely clear that the facts in the case at bar bear no resemblance to the facts set forth in either of the above cases and are not within the reasoning of either. The agreement directly affected and restrained interstate commerce.

The case we regard as a plain one and it is unnecessary to further enlarge upon it.

There is one other question which, although of secondary importance, is raised by the plaintiffs in error. After the rendition of the verdict the plaintiffs below claimed a reason: able attorney's fee under the seventh section of the act, and anade proof of what would be a reasonable sum therefor, from which it appeared that it would be from $750 to $1,000. The trial court awarded to the plaintiffs $750. The verdict being only for $500, the plaintiffs in error claimed that the allowance was an improper and unreasonable one. The trial took some five days. The judgment in effect pronounced the association illegal. The amount of the attorney's fee was within the discretion of the trial court, reasonably exercised, and we do not think that in this case such discretion was abused.

The judgment is

Affirmed.

AMERICAN BOOK COMPANY . THE STATE OF KANSAS ex rel. NICHOLS.

ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS.

No. 126. Argued January 15, 18, 1904.-Decided February 23, 1904.

It is the duty of this court to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions of law.

When it appears either on the record, or by extrinsic evidence, that the judgment sought to be reviewed has, pending the appeal, and without fault of the defendant in error, been complied with, this court will not proceed to final judgment but will dismiss the appeal or writ of error.

THE facts are stated in the opinion of the court.

Mr. W. H. Rossington, with whom Mr. Charles Blood Smith and Mr. Clifford Histed were on the brief, for plaintiff in

error.

Mr. A. B. Quinton and Mr. G. C. Clemens, with whom Mr. C. C. Coleman, Attorney General of the State of Kansas, and Mr. Otis E. Ilungate were on the brief, for defendant in error.

MR. JUSTICE MCKENNA delivered the opinion of the court.

This is a proceeding in quo warranto, brought in the Supreme Court of the State of Kansas by the county attorney of Shawnee County of said State to oust defendant in error from doing business in the State, and to declare void certain contracts entered into by the defendant in error with the State Text Book Commission.

A preliminary injunction was granted restraining plaintiff in error from entering into any contract with any person in the State and from furnishing school books to its agents in the State.

VOL. CXCIII-4

Passing finally on the relief prayed for, the Supreme Court, awarding judgment, said:

"The plaintiff cannot, in this action, have an annulment of the contract already made. It may be that there are equitable circumstances forbidding the cancellation of such contract. It may be that compliance with the law by the defendant hereafter will retroactively validate the contract, in the event that it should now be invalid. However, independently of such consideration, we do not have jurisdiction over that branch of the case. Our jurisdiction is in quo warranto alone. A grant of that jurisdiction does not authorize the joinder to a cause of action for ouster of another one for the annulment of a contract, merely because the subject matter of the latter possesses incidental connection with the subject matter of the former.

"The defendant will be ousted of its claimed rights to do business in this State until it complies with the requirements of the law, but the prayer of the petition for the annulment of the contract will be denied."

Plaintiff in error is a New Jersey corporation engaged in the publishing and selling of school books, and the charge of the defendant in error is that plaintiff in error was doing business in the State without having complied with the laws of the State in regard to foreign corporations.

The laws of the State require a foreign corporation, as a condition of the right to do business in the State, to make an application to the Charter Board of the State to do such business and to file a certified copy of its charter or articles of incorporation, and to furnish certain information to such board. The statute also required the payment of a charter fee graduated upon the amount of the capital stock of the corporation. Ch. 10, Laws, 1898; Gen. Stat. 1901.

The court held that plaintiff in error had "complied, although irregularly, informally and out of time, with the law, except as to section two of chapter ten of the laws of 1898," and the requirements of that section were necessary to give plaintiff in error "the status of a foreign corporation authorized to do business" in the State.

The defence of plaintiff in error was, and its contention is

here, that its business was solely that of interstate commerce, and that the statute of Kansas alleged to have been violated could have no application to such business, and the court had no power to exclude plaintiff in error from transacting interstate commerce in the State. It was and is further contended that plaintiff in error had entered into contracts with certain persons and corporations in the State for the sale and delivery of its publications, which contracts were still in force and effect, and under which plaintiff in error had incurred liability; and if the statutes be construed as applicable to it they would impair the obligations of those contracts and be in violation. of section ten of article one of the Constitution of the United States.

A motion is made to dismiss on the ground that the judg ment of the Supreme Court has been complied with. The compliance is not denied, but it is attempted to be justified on the ground that plaintiff in error had only to the fifteenth of September "to supply the wants of the public schools in Kansas with the books it had contracted to deliver, and under the stress of this public necessity, and under the sanction and penalties of its contract, it felt coerced to make a payment aforesaid (the charter fee) and otherwise to comply with the statute as interpreted by the Supreme Court in the case at bar."

It is also urged that another suit has been brought by the same law officer of the State in the name of the State, in the District Court of Shawnee County, which suit is pending in the Supreme Court on appeal from the ruling of the District Court denying a temporary injunction, and that it is contended by the State the judgment of the Supreme Court in the case at bar was an adjudication of a non-compliance of plaintiff in error with the statutes of the State. And, it is alleged, that the same defences were made as in the case at bar. It is hence contended that "there still exists a controversy, undetermined and unsettled," involving the right of the State to enforce the statute against a corporation engaged in interstate commerce.

The motion to dismiss must be granted. We said in Mills v. Green, 109 U. S. 651: