dissenting. Although the majority of courts outside Ohio may hold the collection of garbage to be a governmental activity as distinguished from a proprietary one, this court in 1916 in its only previous decision on the question held it to be a proprietary activity. City of Cleveland v. Russo, Admr., 98 Ohio St., 465, 121 N. E., 901. I cannot see how subsequent decisions by Courts of Appeals in two appellate districts can definitely commit Ohio to a contrary conclusion, even though this court refused to allow motions to certify when attempts were made to have this court review those decisions. As we have often said, our refusal to allow a motion to certify does not represent an approval by this court of the decision of the Court of Appeals.
Furthermore, as the majority opinion recognizes, this court has held on at least three occasions, the last being in a unanimous decision in 1949, that the operation, maintenance and repair of sewers after their construction is a proprietary undertaking. This holding has been made notwithstanding the fact that, under Section 715.40, Revised Code (formerly Section *353647, General Code), municipalities have been accorded authority to keep sewers and sewage disposal works in repair.
In my opinion, the accumulation within a municipality of those wastes that sewers are designed to handle would often be more “deleterious to public health and safety” than would the accumulation of garbage therein; and “the collection and disposal of” sewage “by the municipality” should “constitute” as “valid” an “exercise of police power and represent” as much of “a governmental function for the safeguarding of the public health” as does the collection and disposal of garbage by the municipality.
Hence, it seems to me that, if we are to be consistent with our decisions with respect to the operation, maintenance and repair of sewers, even if we might otherwise be disposed to disregard our decision in the Russo case, we should reverse the judgment of the Court of Appeals.
Bell, J., concurs in the foregoing dissenting opinion.