be worthless. Even granting this to be so, still the constitution does not discriminate among men according to the amount of their possessions. The guaranty of this section extends as fully to the poorest as to the wealthiest citizen of the State; and, though an abuse of the liberty so guaranteed may result in loss for which there can not be any adequate compensation, the framers of our constitution in preparing it, and the people in adopting it, doubtless concluded that it was better that such results be reached in isolated cases, than that the liberty of speech be subject to the supervision of a censor. To declare that a court may say that an individual shall not publish a particular item is to say that the court may determine in advance just what the citizen. may or may not speak or write upon a given subject-is, in fact, to say that such court is a censor of speech as well as of the press. Under similar constitutional provisions, the supreme courts of California and Missouri have reached the same conclusion. (Daily v. Superior Court, 112 Cal. 94, 44 Pac. 458; Marx & Haas Jeans Clothing Co. v. Watson, 168 Mo. 133, 67 S. W. 391.)

(b) What we have said above, in the first paragraph of this opinion, is likewise applicable here. If any one of these individuals could publish this circular, they may with equal security all join in its publication. We think the evidence produced at the hearing was insufficient to justify the continuance in force of the injunction, and it should have been dissolved.

The order of the court is reversed, and the cause is remanded, with direction to vacate the order heretofore made and enter an order dissolving the injunction.

LABOR ORGANIZATIONS-EXPULSION OF MEMBERS-BENEFICIAL ASSOCIATIONS-FORFEITURE OF POLICY-ACTS OF THIRD PARTIES-MEASURE OF DAMAGES-St. Louis Southwestern Railway Company of Texas v. Thompson, Court of Civil Appeals of Texas, 108 Southwestern Reporter, page 453. This case was before the court of appeals for the second time, having first been heard under the title, Thompson v. Grand International Brotherhood of Locomotive Engineers et al. (91 S. W. 834). The appeal at that time was by W. Z. Thompson from a decision of the district court of Smith County, in which he had sued the Brotherhood, the railway company above named, and certain individuals, to recover damages for alleged wrongful and malicious expulsion from the Brotherhood and for the malicious publication in the Brotherhood Magazine of the statement that he had been expelled for unbecoming conduct and the violation of his obligation.

On the first hearing the district court directed a verdict in favor of the defendants, which judgment was, on appeal, reversed and the case was remanded for a new trial under a ruling that it should have gone to the jury. On this trial judgment was given against the railroad company for $500 actual and $2,000 exemplary damages, and the case as to the other defendants was dismissed. The railroad company thereupon appealed, securing first a reversal of the judg

ment awarding damages, but on rehearing the judgment as above set forth was affirmed.

The facts and much of the opinion of the court in the second trial are presented only by reference to the opinion in the first appeal. It appears that Thompson was a locomotive engineer and had been at one time employed by the St. Louis Southwestern Railway Company, and that he was, prior to his expulsion therefrom, a member in good standing of the Brotherhood of Locomotive Engineers. This organization extends over the United States, Canada, and Mexico, and includes in its membership nearly all the locomotive engineers in its territory. It consists of a "grand brotherhood", incorporated and having its headquarters at Cleveland, Ohio, with a "grand chief engineer," P. M. Arthur; and of subordinate divisions, each presided over by a "chief engineer" and other officials. The order publishes a monthly magazine of large circulation among its members and others as an organ of communication between its members and also with the public. By the rules of the local branches, all expulsions of members are published in this journal. In the case of such expulsions, an appeal lies to the grand chief engineer.

Upon joining the organization the members obligate themselves, among other things, not to "sign or circulate, or cause to be signed or circulated, any paper, circular, petition, or document of any sort whatsoever, calculated to injure or destroy the organization." The order collects dues and provides sick and disability benefits and issues life insurance policies, one of which Thompson held. The amount of Thompson's policy was $1,500 and he had paid premiums thereon in an amount, approximately, of $350. Members also hold traveling cards which enable them to travel on all trains without the payment of fare.

Thompson was expelled from his local organization and appealed to the grand chief engineer, who upheld the action of the local body. The charges were made by the first assistant engineer of the local body (No. 201), and were two in number, as follows: "For writing to Mrs. A. H. Penniman and urging her to sue the Cotton Belt Railway for the death of her husband. For going on the witness stand in the Bolton case and testifying against the Cotton Belt Railway to the injury of other brothers and causing the brotherhood at large to lose prestige with the Cotton Belt Railway." The letter mentioned was one that had been written by one J. W. Nichols and was signed by him and by Thompson at the former's request. It was addressed to the widow of a locomotive engineer who had lost his life in a wreck, and urged her not to compromise with the company nor settle with it "for a cent less than $10,000," and concluded, "We feel certain that you can get $20,000 from the company, and will only have to pay one-third of it to a lawyer if you will only stand firm and not be persuaded to give away your rights. You can easily

find out who we are from your friends here in Tyler, and if you should want to talk to us we will gladly call to see you. We are not working for the Cotton Belt Company, and we are free to advise you honestly without fear or hope of reward." Thompson sought to justify himself in signing the letter by citing a by-law of the brotherhood that provided that "The widow of any deceased brother shall be assisted in every way and manner which may be deemed proper, etc."

On the first appeal the court had said:

It may be remarked in limine, that the courts are not disposed to interfere with the internal management and conduct of such organizations as the Brotherhood of Locomotive Engineers is shown to be. Its members become such voluntarily and in doing so agree to submit to and abide by the laws of the organization, as embodied in its constitution and by-laws and other rules and regulations lawfully adopted thereunder, and to submit their rights to the judgment of the tribunals provided by the laws of the organization for the government of its members, under the forms of procedure provided. This is true without regard to the fact that the organization is incorporated. "By uniting with the society the member assents to and accepts the constitution and impliedly binds himself to abide by the decision of such boards as that instrument may provide for the determination of disputes arising within the organization. The decisions of those tribunals when organized under the constitution and lawfully exercising their powers, though they involve the expulsion of a member, are no more subject to collateral attack for mere error, than are the judgments of a court of law." (Screwmen's, etc., Association v. Benson, 75 Tex. 555, 13 S. W. 380; 1 Bacon on Ben. Soc., Sec. 102.) This doctrine, however, has this important qualification which is as clearly settled as the general rule, that the society "must confine itself to the powers vested in it, and in good faith pursue the matters prescribed by its laws, such laws not being in violation of the laws of the land, or any inalienable right of the member." (Otto v. Journeymen Tailors' Union, 75 Cal. 308, 17 Pac. 217, 7 Am. St. Rep. 156.)

We are not prepared to say that if the members of division 201 in good faith and in the exercise of their honest judgment determined that the signing of this letter, under the circumstances, was unbecoming conduct or a violation by appellant of his obligation, and sufficient ground for expulsion, they would not have been authorized under the constitution and by-laws of the order to so determine. A good deal of latitude must necessarily, and should be, allowed the members in determining questions such as these, and courts will not interfere, if they act in good faith. Whether this action of the local subdivision, in so far as it was based upon the signing of the Penniman letter alone, was authorized, would depend upon whether its members in good faith, and in the exercise of their honest judgment, expelled appellant for this cause. The evidence introduced by appellant sufficiently raised this issue which should have been submitted to the jury.

The second specification under the charge presented against appellant is based upon his action in "going upon the witness stand in the Bolton case and testifying against the Cotton Belt Ry. to the

injury of other brothers, and causing the Brotherhood at large to lose prestige with the Cotton Belt Ry." It is not to be supposed that if the action of the members of the subdivision in expelling appellant was based upon this charge alone it would be defended in any court, or that it would be contended that under any permissible latitude of discretion or authority, the members of the local subdivision would have been authorized, under any plea of good faith, to have placed such a construction upon the terms of the by-laws, as that under which they claim to have acted, so far as this specification of the charge is concerned. It can not be assumed that appellant in joining the brotherhood and in assenting to all of the provisions of its constitution and laws could ever have supposed or anticipated that a construction so at war with the laws of the land, with his duties as a citizen and a member of society, and involving such an abnegation of his inalienable rights as such, would be adopted, as would punish him for doing that which the law and his duty as a citizen required him to do.

The provision of the constitution, authorizing subdivisions of the Brotherhood to expel members for unbecoming conduct is not unreasonable, on the contrary is just and proper, but if there be written into it the construction which declared the act with which appellant was charged in the second specification of the charge against him, to be unbecoming conduct and ground for expulsion, there would be no hesitation in declaring it unreasonable, unlawful, and void.

It is charged by appellant that in expelling him the members of the division acted maliciously and with intent to injure him, and as showing that they acted maliciously and not in good faith, evidence was introduced tending to show that the charge of signing the Penniman letter was a subterfuge and a pretext, that there was no disposition on the part of the members to expel him on this ground, and that he would not have been expelled at all for this reason. This evidence. shows that it was proposed to appellant that if he would promise to keep off of the witness stand and quit testifying against the railway company he would not be expelled, and that it was only upon his refusal to so promise, but agreeing that he would, when called upon, tell the truth, which was characterized by one of the members as "not sufficient," that it was determined to expel him. The uncontradicted testimony supports this contention of appellant; notably the letter of J. J. Bartholomew to the officers and members of division 201, dated November 15, 1902, and his letter to Arthur, grand chief engineer; the testimony of McCool, one of the defendants "that he named the proposition to Thompson that if he had promised then and there that he would not go on the witness stand against the company as an expert witness, that he would not have voted to expel him;" the fact that Nichols, who wrote the Penniman letter and got Thompson to sign it, and who was also under charges for doing so, made the required promise and got off with suspension for three months. If it be true that the expulsion of appellant was solely upon the ground set out in the second specification, and that the prosecution for, writing the Penniman letter was merely for the purpose of affording a color or pretext for the expulsion, then it could not be said that the members acted in good faith and from proper motives in expelling him.

Appellant was not required to exhaust the remedies within the order to correct the wrongful action of the local division, before bringing this suit for damages. It was held by the Supreme Court in Screwmen's Ben. Association v. Benson, 76 Tex. 552, 13 S. W. 379, that such a course was necessary before resorting to the extraordinary remedy of mandamus to compel reinstatement, and for obvious reasons pertaining to the nature of that extraordinary remedy. In that case, however, which was a suit for damages as well as mandamus, the court especially limited its decision to that part of the petition which sought a mandamus. Upon a second appeal to this court in which the opinion of the court was by Justice Williams, it was expressly held that the remedy for damages, could be prosecuted without having resorted to the appeal within the order. (Benson v. Screwmen's Ben. Ass'n (Tex. Civ. App.) 21 S. W. 562.) We are content to follow this opinion, which appears to us to be sound. Reinstatement in the order as a result either of an appeal to the next meeting of the Grand International District Convention, or failing that, by a writ of mandamus, would not have afforded appellant full redress for the injury to his property rights and other damages suffered on account of his expulsion from the brotherhood.

In the second opinion, which, like the first, was delivered by Judge Reese, much consideration was given to assignments of error which were overruled, and which need not be noted here. The question of evidence as to damages and their admeasurement was discussed as follows:

It was not error to instruct the jury to take into consideration, in estimating appellee's damages, the value of his insurance policy in the order. This policy was in favor of his wife for $1,500, on which appellee had paid assessments for eight or nine years at the rate of $1.50 to $3.50 per month. It was a necessary consequence of his expulsion, if not reinstated in 12 months, that this policy should be forfeited without return of any part of the assessments paid. This was sufficient to show that the policy was of some pecuniary value to him. That the amount of this value could not be accurately estimated would not prevent its proper consideration by the jury in finding the amount of his damages. The same may be said with regard to other benefits of which appellee was deprived by reason of his expulsion, including the traveling card which enabled him to travel on all railroad trains in the United States, Mexico, and Canada. If this card was a mere gratuity, as claimed by appellant, and there was no obligation upon it or any other railway company to recognize it, or to allow appellee to ride upon it without paying his fare, nevertheless such cards were in general use, and did enable the holders thereof to ride upon trains without payment of fare, and for this reason it can not be said that the card was not of some pecuniary value, or that this, as an element of damages, was purely speculative. We can not agree with appellant's contention that a member of a society or beneficial order, such as was the Brotherhood of Locomotive Engineers, can not recover such actual damages as he may suffer on account of his wrongful and unlawful expulsion therefrom, but must be limited to nominal damages. Such damages may be of very uncertain value, and the amount thereof very difficult of ascertainment, but they are not more so than damages for mental or physical suffering,