west with the south boundary line of Oak | building to be taken down or removed outstreet to Fifth street; thence south along side of the fire limits. If the person so the east boundary line of Fifth street to Ash street; thence east along the north boundary line of Ash street to the main line of the St. Louis, Iron Mountain, & Southern Railroad; thence northeasterly with the St. Louis, Iron Mountain, & Southern Railroad to the western line of Water street; thence north along the west line of Water street to the northeast corner of lot 21, to the place of beginning. "Section 314. Hereafter it shall be unlawful for any person, without obtaining a special permission from the mayor and city council, to construct, build, or place, or cause to be constructed, built, or placed, any edifice, building structure, or shed, the cuter walls of which are in whole or in part made of wood, in that part of the city embraced within the fire limits, as described in the preceding section. "Section 315. Whenever any person or persons shall desire to construct, build, or place any wooden building within the fire limits of the city of Poplar Bluff as hereinbefore described, such person or persons shall file with the mayor and council an application in writing, setting forth the location, size, and manner of construction of the proposed building, and the purposes for which it is to be used. Such application must be accompanied by the written consent of all persons owning property within the block in which such proposed building is to be erected or placed. Upon the filing of such application and written consent of the property owners aforesaid, the council may, by resolution, authorize the construc notified shall refuse or neglect for the space of ten days to comply with the requirements of the order issued by the mayor as herein provided, then the mayor shall cause such building to be taken down or removed beyond the fire limits, and the expenses incident thereto may be recovered of the owner of such building by suit in any court of competent jurisdiction." "Section 342. Whoever shall violate any provision of this ordinance wherein no specified penalty is provided shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than one nor more than one hundred dollars." Also, an amendment to § 313, passed November 20, 1899, only changing the description of the boundaries. Whether the property in question was within the original boundaries does not appear in the pleadings, and makes no difference. The answer then proceeds as follows: "Defendants further state that on the 20th day of April, 1908, and while the above ordinances were in full force and effect, the plaintiff, W. B. Hays, being desirous of erecting a wooden structure which he called an 'air dome' upon the west half of lot 61 in the original town, now city of Poplar Bluff, Missouri, and which said lot was within the fire limits of defendant city, filed with defendant's city clerk the following document, to wit: "April 6, 1908. "To the Mayor and City Council. "Gentlemen: tion or erection of the desired wooden build- willing for W. B. Hays to erect an air dome "We, the undersigned property owners are ings within the said fire limits: Provided, that the names of the members voting for and against said resolution shall be entered on the journal, and a vote of a majority of all the members elected to the council shall be necessary for its passage. on lot 61-stage to be built of iron. by W. B. Hays, Agt.; Geo. D. Kirkhoff; W. "[Signed] W. B. Hays; Mrs. J. L. Parham, J. Kennedy; State Bank of P. B., by W. W. Turner, Cashier; J. H. Dates, by E. Bacon, Agt.; Mrs. K. M. Arrendale; Mrs. Etta C. Blatt, by C. E. Kinder, Agt. "Section 316. Any person who shall build, construct, or place, or suffer any wooden building to be constructed, built, "Defendants further state that said plainor placed within the fire limits of the city tiff, W. B. Hays, failed and neglected to file of Poplar Bluff contrary to the provisions with the mayor or city council an applicaof the preceding sections, shall be deemed tion in writing for permission to erect said guilty of a misdemeanor, and upon convic- wooden structure, setting forth its location, tion thereof be fined not less than twenty-size, and manner of construction, and the five nor more than one hundred dollars, and a like fine for every week that he shall continue in violation of the said section. "Section 317. Whenever any wooden building shall be constructed, built, or placed within the fire limits of this city contrary to the provisions of this ordinance, it shall be the duty of the mayor to issue an order requiring the owner, occupant, person in charge, or builder thereof, to cause such purpose for which it was to be used, as required by the ordinances of the defendant city; but, on the contrary, defendants aver that said plaintiff, W. B. Hays, filed no application whatever for said permit other than the document set out in full above, which purports to be the written consent, to the construction of said building, of all persons owning property in the block in which said wooden structure was to be erected, but which in truth and in fact was not signed by all persons owning property in said block and square in which said building was to be erected, but on the contrary was signed by but a small number of the persons who owned property in said block; and defendants aver that the plaintiff at no time filed with the proper officers of the city the 'written consent of all persons owning property in the block in which said proposed building was to be erected' as required by defendant city's ordinances." It then states, in substance, that the following entry appears upon the journal of the proceedings of the city council as of April 27, 1908: "W. B. Hays presented to the council the consent of all the property owners in lot of the old town, and asks for permission to build an 'air dome.' W. B. Hays now presents to the council the consent of all the property owners in lot 61 of the old town for him to build an ‘air dome' on said lot, and now asks permission of the council, which is granted." It is alleged that this entry was made by the clerk without entering the names of members voting for and against it on the journal, without the consent of all the property owners as required by law, and without a vote having been taken thereon as required by law, and in violation of the ordinances of the defendant city in that behalf, and of his duties as city clerk, and that it was void. That after the entry of this order the plaintiff, without the consent of the mayor and city council, and without the consent of all persons owning property in the block, wrongfully, in violation of the city ordinances, and in disregard of the lives and property of the inhabitants, built on said lot a wooden structure, the outer walls of which were made of wood, with a wooden stage, chairs, and benches, a wooden confectionery stand, and other combustible articles too numerous to mention; and afterwards in the same fall, wrongfully and without permission of the city or consent of all the property owners, put in a wooden floor, stretched a tent over it for a roof, and changed the name of the structure to "Tanguay Skating Rink," and operated it as a skating rink until the fall of 1909, when he appeared before the council and deceived it by saying that if it would give him permission to cover the structure with an iron roof he would remove it from the lot the "next spring," and that he intended to use it in the meantime only as a skating rink. written application they proceeded to write the office of the city clerk the following: [Signed] State Bank of P. B., by W. W Turner; Etta Goss Blatt; John H. Dates, by E. Bacon, His Agt.; Bacon Realty Co., by E. Bacon, Prest.; Mrs. J. J. Parham, by W. B. Hays, Agt.; C. M. Ducker and Sons; Kate M. Arrendale. The answer then states that this paper contained the names of only a small portion of the persons owning property in the block, and that its filing conferred no right upon the plaintiff; but, notwithstanding this, the plaintiff proceeded to put on his iron roof, put in permanent wooden partitions, and rented the rooms to divers persons who are conducting in it a saloon, a bowling alley, a billiard and pool room, and a gambling house. As soon as the city learned (so runs the answer) "that said plaintiff intended disobeying his agreement to remove said building, but on the contrary maintaining the same as a permanent structure, to wit, on January 17, 1910, that the proper officers of the defendant city duly passed, and the mayor duly approved," the ordinance we have already copied in connection with the petition, and which conThe council once more confided in him, stitutes the motive of this action. The anand were again deceived. They were so im-swer then proceeds: "Defendants further pressed by his persuasive diction that it did not occur to them to ask him to put it down in black and white, but without any state that, immediately after the passage and approval of the above ordinance, the defendant city's mayor, John W. Berryman, 147 S. W. 998, 999: "Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied.' St. Louis v. Bell Teleph. Co. 96 Mo. loc. cit. 623, 2 L.R.A. 278, 9 Am. St. Rep. 370, 10 S. W. 197; Nevada use of Gilfillan v. Eddy, 123 Mo. loc. cit. 557, 27 S. W. 471; Independence v. Cleveland, 167 Mo. 388, 67 S. W. 216." issued an order on the plaintiff to abate | ner, 243 Mo. 217, 223, 41 L.R.A. (N.S.) 177, and remove said building, by having served on plaintiff a true copy of the above ordinance, ordering plaintiff to abate said build ing and to remove the same without the fire limits of the defendant city within ninety days after the passage of said ordinance, but defendants state that the plaintiff, although thereto requested according to law and the ordinances of the defendant city, neglected and refused to remove said building within said time, but stated, averred, and threatened that he intended keeping and maintaining said building on said lot permanently, and still refuses and neglects to remove the same." A The plaintiff replied by general denial. trial was had and testimony taken which fills about 340 pages of the abstract. It will be unnecessary to examine this. The preliminary injunction was made perpetual. The defendants, in their joint answer, admit that the city, before the institution of this suit, by ordinance passed and approved February 21, 1910, ordered the plaintiff's building in question to be abated and removed within ninety days after the service of notice of its passage, "for the reason that said building is constructed of combustible material, and therefore a nuisance, and was built in violation of §§ 313, 314, and 315 of the revised ordinances of the city of Poplar Bluff of the revision of 1898, and ordinance No. 24.” Also, that it immediately served an order and notice on plaintiff to abate and remove said building "without the fire limits of the defendant city" within ninety days. It has therefore, in the most solemn and effective form in which it can express itself, threatened to enforce the fire-limit ordinance by abating and removing the plaintiff's building; and the street commissioner joins it in a justification of both under the same ordinance. Neither in the pleadings nor in the briefs of their common counsel does he attempt to evade any responsibility assumed by the city, and we cannot make a discrimination in his favor which he does not deign to make for himself. We will therefore consider the case against both as if the city were the only defendant. This brings us at once to the question: Are the provisions of the city ordinance purporting or attempting to establish fire limits for Poplar Bluff, a city of the third class, valid? In considering such questions, we usually begin with some form of the ancient and indubitable proposition that, under our system of government, municipal corporations possess no powers or faculties not conferred upon them, either expressly or by fair implication, by the law which creates them, or by other statutes applicable to them. As we said in St. Louis v. Dreisoer The power upon which defendants have planted themselves for justification in this case is contained in § 9228 in article 4 of chapter 84 of the Revised Statutes of 1909, relating to cities of the third class, and is as follows: "The council may also provide, by ordinance, limits within which no building shall be constructed except of brick or stone or other incombustible materials, with fireproof roofs, and impose a penalty for the violation of such ordinance, and may cause buildings commenced, put up, or removed into such limit, in violation of such ordinance, to be removed or abated." That this provision gives ample power to the legislative department of the city government to establish districts in which no building of other than incombustible materials shall be constructed is evident; but to construe it to give power to establish districts in which buildings of combustible or incombustible materials may be constructed, as may be arbitrarily determined by the mayor and council in each particular case, requires us to reject its broadly prohibitive words, thus rendering it meaningless and inoperative, or to add words of permission which would defeat the evident object of the enactment, which is that all persons owning property within the limits established, and the general public as well, should be protected against the menace of combustible structures within such limits. It bears no evidence, as does the ordinance, that the legislature had in mind the idea that each block should stand alone in the matter of such protection, and the record of disastrous fires in cities furnishes no foundation for such a theory. Nor is there any evidence in the act of a legislative notion that those who might have the necessary influence, the "pull," as it is often called in the expressive language of our time, might obtain special permission not open to others, to build combustible structures within the designated limits. It laid down a rule applicable alike to all, of government by law, and not by special privilege or favor. An attempt of the general assembly to authorize the ordinance in question would have been an attempt to confer upon the agent of its own creation a lawmaking power which the Constitution had expressly withheld from itself. Clause 26 of § 53 of the 4th article of our Constitu- | its general scheme by which the city council tion forbids the passage by the general as- places its paternal hand upon the interests sembly of any local or special law granting of the people of the city with the manifest to any person any special right, privilege, intention of gathering to itself the undeor immunity. It would, of course, be ab- fined and arbitrary power to determine who surd to say that, in the face of this consti- shall have the special privilege of erecting tutional inhibition, it might, by special law, buildings of combustible materials in these permit such individuals as it should select areas, and who shall be denied, without from time to time to violate a penal law, being entitled to the courtesy of a reason. and grant them immunity therefor. It This cannot be done. The reason is well would be still more absurd to say that the expressed by the supreme court of Indiana general assembly could give itself the power in Elkhart v. Murray, 165 Ind. 304, 1 L.R.A. to grant such special privileges and immuni- (N.S.) 940, 112 Am. St. Rep. 228, 75 N. E. ties by the clumsy subterfuge of inserting 593, 6 Ann. Cas. 748, as follows: “If an in all prohibitive and penal laws a condition ordinance upon its face restricts the right that the forbidden act might only be done of dominion, which the owner might otherwith its permission expressed by statute. wise exercise without question, not accordBut it would be the most absurd of all to ing to any uniform rule, but so as to make contend that, although the Constitution had the absolute enjoyment of his own depend withheld from the general assembly the upon the arbitrary will of the city authoripower to pass such laws, that body might ties, it is invalid, because it fails to furgive its own agent, the legislative body of nish a uniform rule of action and leaves a municipal corporation, the power to make the right of property subject to the will of them. such authorities, who may exercise it so as to give exclusive profits or privileges to particular persons." The wealth of authority opened by the court in its citations in that case has been of great assistance in the investigation of the subject. This court also, in St. Louis v. Russell, 116 Mo. 248, 257, 20 L.R.A. 721, 22 S. W. 470, 472, held an ordinance of the city of St. Louis invalid "for the reason that by its provisions one citizen is permitted to erect a livery stable in a certain locality by obtaining the written consent of the owners of one half the ground in the block, while another of like merit would not be permitted to do so for the want of such consent." In that case the court cites, with its approval, numerous authorities; among others, Barthet v. New Orleans (C. C.) 24 Fed. 564, in which an ordinance of that city was held invalid which made it unlawful to maintain a slaughterhouse "except permission be granted by the council of the city of New Orleans;" State v. Mahner, 43 La. Ann. 496, 9 So. 480, in which an ordinance forbidding the keeping of more than two cows by any person within certain prescribed limits in the city without a permit from the city council was held void; Richmond v. Dudley, 129 Ind. 112, 13 L.R.A. 587, 28 Am. St. Rep. 180, 28 N. E. 312, in which an ordinance forbidding the storing of inflammable or explosive oils within the limits of the city of Richmond, without the permission of the common council, was held void; State v. Dubarry, 44 La. Ann. 1117, 11 So. 718, in which an ordinance of the city of New Orleans was held void because it prohibited the setting up of any private market without permission of the city council; Newton v. Belger, 143 Mass. 598, 10 N. E. 464, in It is suggested that although such a condition may be unconstitutional and void, yet the court should simply strike it out, so that in its mutilated condition the ordinance would denounce its penalty against all alike. Thus the court could make an ordinance changing the conditional prohibition of the municipal mayor and council into an absolute one, avoiding the quicksands of the Constitution. The supreme judicial court of Massachusetts answered this proposition in Austin v. Murray, 16 Pick. 121, 126, as follows: "A by-law being entire, if it be void in part, shall be void for the whole. The reason is obvious, for, if a part of a by-law might stand good, while another essential part could not be sustained, the object of the by-law might be defeated, and injurious consequences might follow against the intention of the framers." The by-laws so held to be entire consisted, like this ordinance, of a general prohibition to do a certain thing without the consent of the selectmen. The mayor and city council of Poplar Bluff, under the charter power we have quoted, undertook to establish fire limits within which they attempted to make it unlawful, without a special permission from the mayor and city council, "to construct any edifice, building, structure, or shed the outer walls of which are in whole or in part made of wood." The combustible character of the structure seems to be entirely ignored. A shed with metal angles or gas pipe for framework and tarred paper for walls and roof would evade the description of the prohibited structures as completely as brick or stone with fireproof roof. But the vice most important in this ordinance is operate its road upon a street was held to be valid. There is evidently no similarity between the two cases. In the Kirkwood Case the town is giving the use of its own street which it may give or withhold to any extent it pleases. In this case the city has nothing to give, but is appropriating the property of the individual to the use of the people through the exercise of the police power of the state, and must look to the grant of that power for the exact limits of its right. So far as the Fischer Case conflicts with the Russell Case, supra, it is disapproved, and the doctrine of the latter, as well as of St. Louis v. Dreisoerner, 243 Mo. 217, 223, 41 L.R.A. (N.S.) 177, 147 S. W. 998, 999, and St. Louis v. Atlantic Quarry & Constr. Co. supra, is approved. which an ordinance permitting the board of learned judge who wrote it concurred, and aldermen to exercise their discretion in which brings to its support many well-congranting or refusing permits for the erec-sidered adjudications of this and other tion of buildings within the fire limits was courts, it does not overrule nor even menheld invalid; and State v. Tennant, 110 N. C. tion it. The one case cited in the Fischer 609, 612, 15 L.R.A. 423, 28 Am. St. Rep. 715, Case to the points we have considered is 14 S. E. 387, in which a like fate befell an St. Louis & M. River R. Co. v. Kirkwood, ordinance of Asheville, North Carolina, for- 159 Mo. 239, 53 L.R.A. 300, 60 S. W. 110, bidding the erection of a building in the in which a condition contained in an ordicity without having first applied to the al-nance of the town of Kirkwood giving a dermen and obtained permission for that railroad company the right to build and purpose. All these cases were decided upon principles stated in Elkhart v. Murray, supra, and repeated by the supreme court of North Carolina in the case last cited, as follows: "If an ordinance is passed by a municipal corporation, which upon its face restricts the right of dominion which the individual might otherwise exercise without question, not according to any general or uniform rule, but so as to make the absolute enjoyment of his own depend upon the arbitrary will of the governing authorities of the town or city, it is unconstitutional and void, because it fails to furnish a uniform rule of action and leaves the right of property subject to the despotic will of aldermen, who may exercise it so as to give exclusive profits or privileges to particular persons." The sentence quoted is followed by a long list of authorities to the same effect. The same principle is restated, with a liberal citation of authorities, by this court in St. Louis v. Atlantic Quarry & Constr. Co. 244 Mo. 479, 487, 148 S. W. 948. Our conclusion is that the ordinance in question is void because it is not within the legislative powers delegated to the city by Our statute (Rev. Stat. 1909, § 2534) deits charter; because it violates the funda- clares, probably in conformity to the rule mental principle inherent in our constitu- of the common law, that the remedy by tional system that when a municipal corpo- writ of injunction shall exist in all cases ration seeks by ordinance to restrict for the where an irreparable injury to real or perpublic good the rights of the individual sonal property is threatened, and to preotherwise incident to the ownership of prop- vent the doing of any legal wrong whatever erty, it must do so by a rule applicable to whenever in the opinion of the court an adeall alike under the same circumstances, and quate remedy cannot be afforded in damcannot make his enjoyment of his own de- ages. One of the most common uses of the pend upon the arbitrary will or caprice of writ is to prevent injury to or destruction the municipal legislature; and because its of property by the unauthorized or wrong. refusal to consider applications for relief ful exercise of police powers by municipal from the enforcement of its prohibitory corporations. In Connecticut Mut. L. Ins. terms, unless accompanied by the written Co. v. St. Louis, 98 Mo. 422, 11 S. W. 969, consent of the property owners of the block, it was successfully used to prevent amounts to a delegation of the legislative the destruction of a building by the power of the city to such property owners. We have considered these questions at greater length than we would otherwise think necessary, because the decision of this court in St. Louis v. Fischer, 167 Mo. 654, 64 L.R.A. 679, 99 Am. St. Rep. 614, 67 S. W. 872, is, we think, inconsistent with the conclusion at which we have now arrived. Although that case is irreconcilable with the Russell Case, supra, in which the II. There is nothing in the objection that the respondent is not entitled to injunctive relief because he has an adequate remedy at law. The injunction forbids the tearing down of the building, interference with the plaintiff's possession or title to the land and building thereon, and the molesting of plaintiff or his tenants. city in opening or improving a street. In Boyd v. Frankfort, 117 Ky. 199, 213, 111 Am. St. Rep. 240, 77 S. W. 669, 673, it was used to prevent the destruction of a church without the consent of the common council as required by ordinance. The court said: "There can be no doubt of the right of appellants to maintain this action. The law authorizing it has been repeatedly declared by this court. Thus in Newport v. |