OPINION OF MOTION FOR REHEARING. Appellant's motion for rehearing vigorously assails our opinion on the following grounds: (1) that in holding that the street lighting contract is impliedly limited to a period of not to exceed twenty years by Section 12 of Article X of the Missouri Constitution, we passed upon a constitutional question not raised by the pleadings; (2) that our holding on this question is in conflict with certain *Page 815 previous decisions of this court; (3, 4, 5, and 6) that we erred in holding that the provision in the ordinance for renewing the franchise did not also renew the clause prohibiting the Town from constructing a municipal plant.
(1) The constitutional provision was not directly invoked by the pleadings, but it was briefed and argued at length by respondents; and appellant, without objecting that the question was not properly raised, answered the point in oral argument and in the reply brief.
The general rule: that constitutional questions are not to be raised by the court ex mero motu, though not without exceptions (Ex parte Bass, 328 Mo. 195, l.c. 200, 40 S.W.2d 457), will usually be adhered to by this court. But here, in construing the ordinance, it was necessary to determine whether the street lighting contract continued for forty years as contended by appellant or for only twenty years as claimed by respondents. Under such circumstances we have held it proper to consider pertinent constitutional provisions even though not mentioned in the pleadings. [Jacobs v. Cauthorn, 293 Mo. 154, 238 S.W. 154.] The question was ably and earnestly argued by both parties on the constitutional ground. Now, after an unfavorable decision of the question, we do not think appellant is in a position to claim that the point was not properly in the case.
(2) On this point appellant cites: State ex rel. Proctor v. Walker, 193 Mo. 693, 92 S.W. 69; State ex rel. Wayne County v. Hackman, 272 Mo. 600, 199 S.W. 990; State ex rel. Johnson v. Ry.,315 Mo. 430, 286 S.W. 360; Tate v. School Dist., 324 Mo. 477,23 S.W.2d 1013; State ex rel. Emerson v. Allison, 334 Mo. 542,66 S.W.2d 547; State ex rel. Hannibal v. Smith, 335 Mo. 825,74 S.W.2d 367; State ex rel. Gilpin v. Smith, 339 Mo. 194,96 S.W.2d 40; State ex rel. School District v. Smith,343 Mo. 288, 121 S.W.2d 160; Saleno v. City of Neosho, 127 Mo. 627, 30 S.W. 190; Lamar Water Light Co. v. Lamar, 128 Mo. 188, 26 S.W. 1025.
The Saleno and Lamar cases were discussed in our original opinion. None of the other cases were then brought to our attention, but, after carefully reading them, we find no conflict. Indeed, insofar as they involve a similar question, they sustain the conclusions which we reached in the original opinion.
In our original opinion we held that the contract for annual payments for street lights created an indebtedness for each installment as it fell due and, as these installments exceeded the annual revenue, the council was without power under Section 12 of Article X to make such a contract for a longer period than twenty years. The appellant then argued that these installment payments did not constitute "debts" within the meaning of the Constitution, citing the Saleno and Lamar cases, supra. The only new cases cited in the motion for rehearing which remotely touch this branch of the question are: *Page 816 Tate v. School Dist., supra, and State ex rel. Hannibal v. Smith, supra. The Tate case held that a contract by a school board for the employment of a teacher did not create a debt "until such contracts have been performed." The Hannibal case, supra, held that bonds for the construction of a bridge to be paid wholly from bridge tolls did not create a "debt" within the meaning of the Constitution. It was also said that a provision for paying maintenance of the bridge out of some other fund, in the event the tolls were insufficient to pay the bonds and the maintenance, did not create a "debt" in the constitutional sense because "it may be that there will always be sufficient revenue to maintain the bridge." Neither of those cases nor any other case cited by appellant, either directly or impliedly, holds that a municipal contract which creates an annual liability in excess of annual revenue is not governed by said Section 12 of Article X of our Constitution.
The case of State ex rel. Emerson v. Allison, supra, does not touch any question involved in the instant case. It merely holds that where a taxpayer by suit delays the issuance of bonds after they are voted he cannot successfully complain because the tax was levied before the bonds were issued.
All the other cases cited by appellant on this question are cases in which refunding bonds have been issued. In those cases we have uniformly held that such refunding does not create a new debt and that a municipal debt, valid at the time contracted, is not extinguished by a failure of the municipal authorities to pay it within the constitutional limit of twenty years; and that such debt may without a vote be refunded although the refunding bonds extend more than twenty years beyond the date the original debt was contracted. We adhere to that ruling, but we have never held that a municipality could, at the time of contracting a debt, provide for its extension beyond twenty years either by expressly fixing the due date beyond that period or by providing for a renewal at the end of that period. On the contrary, the ruling in all these cases is based upon the condition that the initial debt must be valid in all respects, including bona fide compliance with said Section 12 of Article X of our Constitution. The case of State ex rel. Proctor v. Walker, supra, is the leading Missouri case on the subject. It follows an Illinois decision (Kane v. City of Charleston, 161 Ill. 179) construing a constitutional provision identical with ours. Responding to the argument that the Constitution indicates a policy of the State that municipal indebtedness should not be created to extend beyond a period of twenty years, we quoted with approval the language of the Illinois court as follows:
"We are not disposed to dissent from that view. On the contrary, we think an intention that such a limit should be placed upon such indebtedness is sufficiently manifested by the language of the Constitution itself. Nor are we disposed to call in question the wisdom of *Page 817 such provision. Evidently it is the duty, under this Constitution, of every city council, when it contracts a municipal indebtedness, to faithfully and honestly provide for the levy of the tax sufficient to pay it within twenty years."
Our opinion does not in any manner affect our former rulings on the refunding of valid municipal indebtedness. No such question is in this case. Here the question is: Can a municipality in thecontract creating the debt provide for its extension beyond twenty years? The Constitution seems clearly to answer that question in the negative.
(3, 4, 5 and 6) On this point appellant cites a number of decisions of this court on the power of a municipality to delegate ministerial duties. We fail to see how they throw any light on the question here involved. Appellant also cites a number of cases from other states construing leases with options to purchase, contracted between private persons. On account of difference in the wording of such leases from the ordinance here under consideration, we do not regard such cases as pertinent.
By leave an amicus curiae brief has been filed in support of the motion for rehearing. In this brief, in addition to points made by appellant, it is argued that the effect of our original opinion will be to invalidate many existing municipal bond issues and other contracts. This argument is based upon the assumption that our opinion means that indebtedness begins at the time bonds are authorized or a contract entered into and must be paid within twenty years from that date. We do not think the language of the opinion warrants such construction; certainly such was not intended. The Constitution requires that, "before or at the time" of incurring any municipal debt requiring the assent of the voters, provision shall be made for the levy of an annual tax sufficient to pay such debt "within twenty years from the time of contracting the same." As to bond issues, of course, the debt is not contracted until the bonds are negotiated even though previously authorized. No contrary view is indicated by our opinion. Nor did we hold that the Town of Carrollton contracted a debt for street lighting at the time of passing Ordinance No. 347. We said "each installment becomes a debt as it falls due." By the passage of the ordinance and its acceptance, the Town incurred a liability which certainly would ripen into indebtedness upon performance by the other contracting party. The Town realized this and further realized that such indebtedness, when it did arise, would exceed the annual revenue. Accordingly, at the time of incurring the liability and before it ripened into indebtedness, the Town procured authority from the voters to levy an annual tax under Section 12 of Article X of the Constitution. Counsel for both appellant and amicus curiae, while arguing that no "debt" was created within the meaning of the Constitution, concede the necessity for the voters' assent to such tax levy. This seems inconsistent to us. The *Page 818 Constitution authorizes an additional tax levy for the sole purpose of paying indebtedness, and the same section which authorizes the tax levy requires that it be sufficient to pay such indebtedness within twenty years from the time of contracting the same. When Ordinance No. 347 was passed both contracting parties knew that if and when the light company complied therewith by furnishing current an indebtedness would arise, and that such indebtedness would continue to arise from year to year as such current should be furnished. But, although such indebtedness would be payable in annual installments, it would be only one indebtedness incurred under one entire mutually binding contract. The time of contracting such indebtedness would be the date when the light company should commence to furnish current.
After careful consideration of appellant's motion, we see no reason to depart from the conclusions reached in our original opinion herein. All concur.