
    No. 2368.
    Master and Wardens of New Orleans v. Robert W. Foster et als.
    Tlie act creating tlie master and wardens of tlio city of 3tfew Orleans, does not prohibit any merchant or body of merchants from employing any other person to examine and survey damaged goods in cases where they were interested. An injunction will not, therefore, lie against any person thus employed, nor can tlio master and wardens recover-damages irom the merchants who have employed such person, nor from the person employed.
    Appeal from the Sixth District Court, parish of Orleans.
    
      Cooley, J. M, A. Dooley, for plaintiffs and appellees.
    
      Leovy & Monroe, for. defendants and appellants.
   Ludeling, C. J.

The plaintiffs allege that they are the Master and Wardens of the port of New Orleans, and that as such they have “ the-exclusive right to discharge the duties and perform the acts prescribed by law for them officially to perform, and that as such officers they have the legal and exclusive right to the fees and emoluments prescribed by law for the performance of such official acts and duties,’’ and they complain that Robert W. Foster, Arthur C. Waugh, George A. Fosdiek, John M. Witherspoon, William F. Halsey, William Crcevy, Theodore Nickerson, Charles W. Fox, R. H. Harris and H. Bidwoll, in. September, 1888, illegally, wantonly and maliciously conspired and, confederated together to injure and disturb petitioners in the rightful enjoyment and legal discharge of the duties of their said offices, and to divest, oust aud deprive them of the legal fees and emoluments which belong and appertain to them as such officers.” That “in furtherance of their said illegal conspiracy,” they procured, instigated and encouraged, and have so continued ever since said date, and still continue to instigate, assist and encourage the said Robert W. Foster to usurp and assume the powers, duties and authority legally and exclusively belonging and appertaining to petitioners by virtue of their said offices as aforesaid, and that said Foster, so instigated, assisted and encouraged as aforesaid, usurped and assumed and still continues to usurp and assume the powers, authority and duties belonging to-petitioners,” etc. And they aver further that said Foster threatens to-continue, and they fear he will continue, his said illegal acts. They therefore pray for an injunction against all the defendants to restrain them “from in any manner usurping, assuming or exercising any of the functions or doing any of the acts appertaining to said offices of petitioners,” etc., and for fifty thousand dollars damages.

The evidence shows that the defendants have entered into a contract whereby the said Foster was employed to examine and survey damaged goods in cases where they were interested, and that the said Foster does not pretend to act under any commission or by virtue of any public office, but simply as the employe of the merchants and underwriters who may engage his. services, and that he has not molested or interfered in any manner with plaintiffs.

We know of no law which prevents the defendants from entering into such a contract as the above, and we think the plaintiffs have wholly tailed to show any right of action.

The grave constitutional questions discussed in the briefs and arguments of counsel need not be passed upon in order to decide this case, and courts of justice will avoid deciding upon the constitutionality of laws unless the decision be indispensably necessary for the determination of the cause.

It is therefore ordered that the judgment of the district court be avoided, and that there be judgment in favor of defendants dissolving the injunction gnd rejectingplaintiffs’ demand, with costs of both courts.

Rehearing refused.  