dissenting. I must respectfully dissent. Because this case was disposed of by summary judgment, we must examine all the evidence presented in support of and in opposition to summary judgment in the light most favorable to appellant. Upon such review in this case, I find-sufficient evidence to raise genuine issues of material fact whether the city of Wooster established its sewer rates for reasons other than those contemplated in R.C. 729.49 and 729.52, whether Wooster was using its surplus sewer funds in an impermissible manner, and whether such surplus funds derived from the sewer fees constituted an impermissible tax.
During a hearing on appellant’s motion for a preliminary injunction and an evidentiary hearing, James B. Pyers, Wooster’s Director of Finance, testified that one of the several reasons for maintaining a sewer fund surplus was “[t]o protect the City’s financial position * * * and keep it in a strong * * * financial position. We want to establish a revenue and a utility fund. Once that history is established, we can immediately go out and borrow funds and be credible in the marketplace.” When reviewing this testimony in the light most favorable to appellant, I believe that reasonable minds could conclude that Wooster may be using the surplus funds for purposes other than those listed in R.C. 729.52. For instance, further evidence may be adduced at trial to show that Wooster was using the surplus funds to create a more favorable financial statement thereby making its municipal bonds more attractive.
*186Additionally, when viewing the amount of the surplus in light of the director of finance’s testimony, reasonable minds could also conclude that the sewer rates were unjust and inequitable because such rates may have been established for reasons other than the use of the storm drainage system in violation of R.C. 729.49.
Accordingly, and contrary to the majority’s finding that “no evidence [was] introduced which even suggests an attempt on the part of Wooster City Council to divert any of these funds to any purpose other than it has provided for in Chapter 925 of the Wooster Codified Ordinances,” there is some evidence that the sewer rates were established for reasons other than those contemplated in R.C. 729.49 and 729.52.
The majority also agreed with the trial court and the court of appeals that reasonable minds could only conclude that because the sewer rates were segregated and the surplus funds were “earmarked” through a “prioritized list” for future sewer projects, the surplus funds derived from the sewer fees do not amount to an impermissible tax. It must be noted that there is no legislative mandate requiring these future projects to be carried out.
In Cincinnati v. Roettinger (1922), 105 Ohio St. 145, 154, 137 N.E. 6, 8, this court stated:
“* * * It is apparent that any effort on the part of any municipality to deliberately impose rates and charges for a water supply, not for the purposes of covering the cost of furnishing and supplying the water, but for the purpose of making up a deficiency in the general expenses of the municipality, and which cannot be met within the limits of taxation otherwise provided, is to that extent an effort to levy taxes, and, to the same extent, an effort to evade the statutory and constitutional limitations upon that subject.”
In light of the above-quoted testimony of the director of finance, and when viewing this testimony in the light most favorable to appellant, there is sufficient evidence which raises a genuine issue whether Wooster was using the excess sewer funds for purposes other than furnishing of the sewer service and, therefore, whether such surplus constituted an impermissible tax.
For the foregoing reasons, I believe this decision should be reversed and the cause remanded to the trial court for the adjudication of these issues.
Douglas, J., concurs in the foregoing dissenting opinion.