Municipalities receive and derive their power and authority for the exercise of local self-government from Section 3 of ArticleXVIII of the Ohio Constitution, stipulating that municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within *Page 377 their limits such local police, sanitary and other similar regulations as are not in conflict with general laws. Under Section 4 of Article XVIII, municipalities are specifically authorized to acquire, construct and operate, within or without their corporate limits, any public utility. But the power thus conferred upon municipalities is not unlimited. In addition to the limitation that the exercise of police powers shall not be in conflict with general laws, Section 13 of Article XVIII provides that laws may be passed to limit the power of municipalities to levy taxes and incur debts for local purposes. In the exercise of this power the General Assembly may define the purposes for which such taxes or charges may be levied and limit the use of the proceeds derived therefrom to such enumerated purposes.
Thus the General Assembly has enacted Section 729.52, Revised Code, limiting the use of funds collected from sewer rentals to the payment of the cost of the management, maintenance, operation, and repair of the sewerage system and sewage pumping, treatment, and disposal works, and that any surplus in such fund may be used for the enlargement or replacement of the system and works, for the payment of the interest on any debt incurred for the construction thereof, and for the creation of a sinking fund for the payment of such debt, but shall not be used for the extension of a sewerage system to serve unsewered areas or forany other purposes.
In City of Cincinnati v. Roettinger, 105 Ohio St. 145, the municipality argued that Section 3959, General Code (now Section743.05, Revised Code), imposing a similar limitation upon use of "surplus revenues derived from water rents" conflicted with the home-rule provision of Article XVIII of the Ohio Constitution, especially Section 4 thereof authorizing any municipality to construct and operate any public utility. This contention was rejected. The underlying theory is that water rates or charges or taxes collected by a municipality cannot be classed as taxes so long as their use is limited to waterworks purposes; but if employed as a mere device to lessen the burden of taxation for general governmental purposes, such funds should be considered in the category of taxes. Paragraph one of the syllabus ofHimebaugh v. City of Canton, 145 Ohio St. 237.
It may be contended with some force that the appropriation of funds in the instant case is not a device to lessen the burden *Page 378 of taxation for general governmental purposes and thus the case is to be distinguished from the facts presented in City ofFranklin v. Harrison, 171 Ohio St. 329, and other cases referred to in the opinion. Nevertheless, the power conferred upon the General Assembly to limit the power of municipalities to levy taxes and incur debts for local purposes includes the power to limit the use of rates or charges to specific purposes. In my opinion, the assumption by the municipality of the payment of assessments levied against property owners for construction of a sewer outside the corporate limits by a county has no reasonably necessary relationship to the maintenance and operation of the sewer system of Toledo or to the other purposes enumerated in the statute. It is true that the $7,000 appropriated and paid to and on behalf of the property owners to date is not substantial, but in view of the large areas containing sewers under annexation to the city of Toledo, under the announced policy, the amount may run into many thousands of dollars and thus dilute the fund limited to operation and maintenance of the sewer system.
In reaching the conclusion, I am not persuaded by the contention of the appellants that such assumption is motivated by a desire to influence the property owners outside the city to favor annexation to such municipality. Should it be assumed that the ordinances are not in conflict with the statute, the motivation underlying the adoption of the ordinances is a matter of legislative, not judicial, determination.
I also dissent on the further ground that the payments are to be made pursuant to an appropriation of public funds for the benefit of private persons without legal or moral justification on the part of the municipality to pay same. 15 McQuillin Municipal Corporations (3 Ed.), Section 39.19. Cf. State, ex rel.Caton, v. Anderson, 159 Ohio St. 159. *Page 379