DISSENTING OPINION
By LIEGHLEY, PJ.Any surplus, after paying expense of operation of water works, may be applied co repairs, enlargement and extensions of works and reservoirs. Revenues from any and all sources are limited to costs of construction, maintenance and extensions and may not be used for any other purpose. §3959, GC. The funds shall be segregated for such purposes only. §3960 GC.
“Syl. 1. Sec 3959, GC, is constitutional and operates as a valid limitation upon the used and purposes-for which revenues derived from municipally owned waterworks may be applied. By virtue of the provisions of that section, surplus revenues derived from water rents may be applied only to repairs, enlargement or extension of the works, or of the reservoirs, and to the payment of the interest of any loan made for their construction, or for the creation of a sinking fund for the liquidation of the debt.”
Cincinnati v Roettinger, 105 Oh St 145.
Section 113 of the Cleveland City Charter requires strict accounting and like segregation of income of each utility owned and operated by the City. This section and other related sections clearly recognize the limitations and restrictions imposed by §§3959 and 3960 GC.
In 1924, after the adoption of the Charter, the City Council as part of the Municipal Code enacted §130 which reads as follows:
Sec. 130: “The commissioner of water and heat shall have the charge and management of all plants owned and operated by the City of Cleveland for the furnishing of water for the use of its inhabitants or for the use of others to whom water-may be sold. The operation of sewage disposal plants shall be treated and construed as being part of the operation of water purification.”
Thereafter, there was diverted from the funds of the water works more than one hundred thousand dollars per annum to defray the expense of operaton of sewage disposal plants.
The last sentence of this section is unauthorized, unwarranted, in conflict with and in excess of the grant of power conferred by §3959 GC, and out of harmony and in conflict with §§41 and 113 of the Charter itself.
It was claimed that §3959 GC, had no application for the reason that Cleveland is a Home-Rule City. However, §1.30 of the Municipal Code contravenes §41 of the Charter, which f@rbids ‘transfer of revenues or earnings of any non-tax supported public utility to any other purpose.’ Also, state law supersedes the Charter whenever the City in its operations imposes discriminatory, unequal or unjust burdens of taxation.
But, it is now contended there was in fact no transfer of funds because the City Council in its wisdom in 1924 said sewage disposal is part of water purification. It is said this finding of the Council establishes this fact. The trial of this case was largely devoted to this issue of fact. It is my judgment that this case does not turn on this issue of fact nor is it in any sense controlling.
*607Everybody knows, and knew when this statute and Charter were adopted, that dumping sewage in the lake contaminates the water. And, if reduced before dumping it, no pollution would result thereby or therefrom. Then and now all knew that lake water for domestic use required certain processes of purification. It is presumed all legislation was enacted in the light of this general knowledge. The proof in this case establishes the incontrovertable fact that these processes and treatments of the water are indispensably necessary with or without sewage disposal plants. Rivers, creeks, surface waters and storm water sewers carry tons upon tons of animal droppings, organic matter, dirt and filth into the lake. Sewage disposal affects the necessity of sanitation, along the lake as much as essential water purification. The water department is amply able to cope with its problems as shown by the proof without taking over any auxiliary activities at the source of contamination. No other city on the lake has resorted to this subterfuge.
This §130 of the Municipal Code was inspired and adopted in 1924 for the obvious purpose of relieving the general fund, budgetized from moneys derived from general taxes, of the cost of operation of these sewage -disposal plants - and loading this cost on the shoulders of water users. If this was not the purpose, then no rational theory exists to explain the action. The result is a larger sum in the general fund for promiscuous uses and indiscriminate tax spending, and water users are indirectly taxed for activities that the general tax duplicate, should sustain.
The personnel of the list of water users differs from the list of general taxpayers in all municipalities, to a greater or less degree. If a council, by simply passing an ordinance declaring that sewage disposal is part of water purification, may legalize this species of indirect taxation in defiance of general and well recognized rules of taxation, then we have a departure involving possible additional transfer and the establishment of a rule of uncertain consequences throughout the State.
It is only a short step to take for the Council to say that scientific control and operation of the sanitary sewer system,— the conduits that carry the sewage to the disposal plants, — are part of water purification, and thereby compel water users to bear this burden of maintenance and thereby effect a transfer of funds by indirec- ' tion.
The Council might solemnly declare it to be a fact that the scientific harnessing of storm water sewers at well chosen intersections, and the interception and treatment of disease-germ carrying organic matter would diminish lake contamination and be a part of water purification. If made ah issue of fact in a trial, doubtless oral testimony would confirm this finding of fact. Then water users should maintain this system and not general taxes or sewer taxes levied for the specific purpose.
Finally, the decree should be for plaintiff.
Sec. 130 of the Municipal Code is unauthorized. It is in conflict with and contrary to law. It is an unlawful indirect levy of taxes for the benefit of the general fund of the City. Conceding it to be a fact that sewage disposal plants reduce the amount of lake water contamination, that fact does not make sewage disposal a proper water department responsibility, nor justify an indirect transfer of funds in face of express statute and charter provision to the contrary. This fact will not authorize the commission of an act indirectly that can not be legally done directly. Nor can- §3939 GC and §41 of the Charter be amended by mere declaration of Council.