Bisbee daily review., 1912-03-08
NEW LIGHT ON
 COURT RULING
Attorney George II. Neale Takes Exception to the Statement Given
 to Council
TELLS OF DECISIONS
Bisbee. March ', 1912.

Bisbee. March ', 1912. Editor Review:
 l am impelled by the the statement oi Mir F. J. Flanigan. city attorney, which appears in this mornings s Re view. to make few remarks. not be cause l desire tO try d litigated case in newspaper controversy, which is not desirable. but because, to my mind, the statement conveys a wrong ful impression 10 real estate agents, insurance agents, and the public who are interested ia the result
 The preliminary statement as to the granting of the temporary injunc- ton in the real estate case is sub sJantially correct. Two grounds were assigned in one cause Of action, as grounds for relief, on the part of Hoffman Bros Loan and Trust com peny. and its employe. A. J. Kissel- burg viz. first, that the business carried on by them was not within the ordinance. that they were not subject to the license, that they were not real estate agents or sub-agents, and that the city wrOngfully claimed that they were, and that it would enforce the ordinance. Second, that the ordinance was unconstitutional and therefore void. on account of there being no basis for a higher H. ceuse on agents for real estate out side COchise county. and a much low CT license on agents for real estate in the county Briefly, without legal verbiage or argument, these were the two points raised against the ordi- nance. On the first complaint, con taining two grounds in one state ment, the court ruled that if we al legged that the ordinance was not ap- plicable to us, We could not also al lege that it was unconstitutional and void This is a rule Of law, that We cannot in one case say, we are not in position to be affected, and in the same cause say, that if we are af- fected, the act will be void, and 1t might have been proper, (thOugh the writer does not concede it under our system of pleading), for the judge to confine us to the first ground, which he did. Not being certain, then, whether the plaintiff would establish the first ground. we amended the com plaint setting up the two grounds separately. and prefacing the second ground of unconstitutS Snality with the clause that if failed of relief on the first ground. then We alleged the second cause This form of pleading is strongly supported The result was that we went to trial on the first ground, inapplicability Of the Ordi nance, first, and the court decided in it's findings and judgment, abso- lutely to the effect that in the busi- ness were conducting, they did not require any license and were not obliged to pay any license whatever. and that their business was not with in the terms of the ordinance. So the result is that the ordinance can not be enforced against them.
 And the same result applies to the other corporations and firms which were carrying on similar businesses.
 The city attorney states that the city won the case, because the formal injunction was denied, when asked to prevent the city from enforcing the ordinance. I cannot see much consolation for him in this. He very narrowly escaped such an injunction from matters in his own answer to the complaint and in the opinion of this counsel, such matter alone was sufficient to warrant an injunction. but the court, for reasons expressed at the time, not necessary to be stat ed. held otherwise. The main issue in the case was decided for Hoffman Bros and Kisselburg. The adjudica- ton is a complete defense to the or dinance, and the only reason the court did not put it in the form of