BROWN, C. The petition was filed in the circuit court for Butler county, March 26, 1910, impleading with the city, as defendant, George Luther, its street commissioner. It states that on April 27, 1908, the defendant city, by its city council, granted plaintiff permission to erect a building of wood and iron on the west half of lot 61 in said city, of which he was seised as owner; that on the 20th day of September, 1909, the mayor and council granted him the further permission to construct on said building, which had then been erected, an iron roof, which he constructed in accordance with such permission. The plaintiff's right to erect and maintain the building under the ordinances pleaded, as well as the acquiescence of the city therein, and its continued and present use for business purposes by plaintiff and his tenants, are fully and particularly set forth, and the petition proceeds as follows:
"Plaintiff, however, states that, notwithstanding all of the matters hereinbefore pleaded and set forth, the said city of Poplar Bluff, by and through its duly elected, qualified, and acting mayor and city council, on the 21st day of February, 1910, caused to be passed and enacted, the following ordinance, to wit:
"`Ordinance No. 240. Bill No. 264. An ordinance declaring the building located on the west half of lot 61 of the original town (now city) of Poplar Bluff, Missouri, to be a nuisance and ordering its abatement and removal.
"`Be it ordained by the city council of the city of Poplar Bluff, Missouri, as follows:
"`Section 1. That the building located on the west half of lot 61 of the original town (now city) of Poplar Bluff, in Butler county, Missouri, be and the same is hereby condemned and ordered abated and removed within ninety days after the service of notice of the passage of this ordinance on the owner, or agent, in charge of said building, for the reason that said building is constructed of combustible material and therefore a nuisance, and was built in violation of sections 313, 314 and 315 of the revised ordinances of the city of Poplar Bluff, of the revision of 1898, and ordinance No. 24.
"`Sec. 2. That if said building shall not be abated and removed within the time provided in this ordinance the street commissioner of the city of Poplar Bluff is hereby ordered and directed to abate and remove said building, after the lapse of the time provided in this ordinance.
"`Sec. 3. That the owners, or agent in charge of said building, failing to abate and remove said building within the time specified by this ordinance, after notice herein provided for, shall be deemed guilty of a misdemeanor and
shall be fined not less than five dollars nor more than one hundred dollars for each offense.'"
It then alleges with particularity that the ordinance is void for lack of power under the city charter to pass it; because the city is estopped to deny the plaintiff's right to maintain the building; because it is in violation of that provision of section 10 of article 1 of the Constitution of the United States, which forbids the states to pass any ex post facto law, or law impairing the obligation of contracts; also of the fifth and fourteenth amendments to the Constitution of the United States; and of sections 15, 20, 21, and 30, of article 2, and section 53, of article 4, of the Constitution of the state of Missouri. That the building is not constructed of combustible material, nor is it a nuisance, as stated in the ordinance quoted, but, although the ordinance is void, the city and defendant Luther, its street commissioner, are threatening and preparing, under its provisions, to not only tear down said building and destroy said building, but to arrest and prosecute plaintiff under the provisions of the third section thereof, all to his irreparable damage and injury, for which he has no adequate remedy at law. That the building is worth $10,000, and is occupied by tenants of plaintiff engaged therein in lawful and proper lines of business. The prayer is as follows: "Wherefore, plaintiff prays that a writ of injunction issue from this court enjoining and restraining said city of Poplar Bluff and its codefendant, George Luther, the duly appointed, qualified, and acting street commissioner of said city, and all other officers, agents, and employés of said city, from further proceedings to enforce the provisions of said ordinance No. 240 hereinbefore set forth, and from abating, tearing down, removing, or destroying plaintiff's building hereinbefore described, and from trespassing upon or in any wise interfering with plaintiff's enjoyment of his said premises, and from interfering in any manner with the possession or title of plaintiff of, in, or to said lot and tract of land and the building situate thereon, and for such other and further relief as to the court shall seem meet and just."
A preliminary restraining order was granted, and the cause progressed so that on November 3d the defendants filed an amended answer denying each and every allegation not therein expressly admitted, and stating that defendant city is a city of the third class, and as such on March 6, 1899, passed a revision of its ordinances containing the following sections, also set out in the petition:
"Sec. 313. All that part of the city of Poplar Bluff comprised within the following described boundaries shall be known as the fire limits of said city: Beginning at the northeast corner of lot 21, in the city of Poplar Bluff, Missouri, running thence west with the south boundary line of Oak street to Fifth street; thence south along 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.
"Sec. 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 outer 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.
"Sec. 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 construction or erection of the desired wooden buildings 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.
"Sec. 316. Any person who shall build, construct or place, or suffer any wooden building to be constructed, built or placed within the fire limits of the city of Poplar Bluff contrary to the provisions of the preceding sections shall be deemed guilty of a misdemeanor, and upon conviction thereof be fined not less than twenty-five nor more than one hundred dollars, and a like fine for every week that he shall continue in violation of the said section.
"Sec. 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 building to be taken down or removed outside of the fire limits. If the person so 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."
"Sec. 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 section 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, Mo., 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...
