Deal v. Tannehill Furnace and Foundry Com'n

• Decision Date: 02 December 1983
• Citation: 443 So.2d 1213
• Parties: Donald DEAL v. TANNEHILL FURNACE AND FOUNDRY COMMISSION, et al. 82-308.
• Court: Alabama Supreme Court

Page 1213

443 So.2d 1213

Donald DEAL v. TANNEHILL FURNACE AND FOUNDRY COMMISSION, et al.

82-308.

Supreme Court of Alabama.

Dec. 2, 1983.

S. Shay Samples of Lee, Barrett & Mullins and Roscoe Hogan of Hogan, Smith & Alspaugh, Birmingham, for appellant.

Andrew P. Campbell of Leitman, Siegel & Payne, and Robert E. Parsons of McDaniel, Hall, Parsons, Conerly, Scott & Lusk, Birmingham, for appellees.

Mary Lee Stapp and Clyde P. McLendon, Asst. Atty. Gen., for amici curiae Leon Frazier, Commissioner of the Dept. of Pensions and Security of the State of Ala., and said Dept. of Pensions and Security of the State of Ala.

BEATTY, Justice.

This is an appeal by plaintiff from the grant of summary judgment for the defendants in an action based upon negligence, wanton conduct, and breach of an implied contract. We affirm.

The action grew out of injuries sustained by plaintiff when, as a visitor at Tannehill State Park, he dived into Mill Creek, a creek located within the park. Named as defendants were the Tannehill Furnace and Foundry Commission, the sixteen members of the commission, and the park superintendent, Edward Nelson. The commission members were sued individually, as commission members, and as members of the board of Tannehill Historical State Park. Nelson was sued as park superintendent. Plaintiff's complaint alleged that the defendants negligently or wantonly failed to provide a reasonably safe place for visitors of the park to swim, and failed to warn visitors of hidden objects submerged in the creek. Plaintiff also alleged the breach of an implied contract to furnish reasonably safe conditions in the park, the contract being founded on an admission fee paid by plaintiff.

The defendants filed a motion to dismiss based upon the Constitution of 1901, Art. I, § 14, which provides: "That the State of Alabama shall never be made a defendant in any court of law or equity."

Following discovery and oral arguments in the court below, defendants furnished the affidavits of Nelson and Dan Kilgo, commission chairman. Defendants also requested that the trial court treat their motion to dismiss as a motion for summary judgment. In due course, summary judgment was granted in favor of all defendants and this appeal ensued.

Plaintiff has presented several issues for our consideration, all relating to the basic question of immunity from liability. In sum, plaintiff questions the defendants' immunity under § 14, under the decisions of this Court in DeStafney v. University of Alabama, 413 So.2d 391 (Ala.1981), and Bell v. Chisom, 421 So.2d 1239 (Ala.1981); under an implied contract theory; and under the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States. We shall review these issues seriatim.

It will be helpful to examine the statutes creating the Tannehill Furnace and Foundry Commission, which are found in Code of 1975, §§ 41-9-320 through -342. Section 41-9-320 explains the commission's purpose:

"(a) There is hereby created the Tannehill furnace and foundry commission to establish, operate and maintain as a state park or historic site the land and buildings in the county of Tuscaloosa where one of the state's early ironworks, known as the Tannehill furnace and foundry, was located.

"(b) The purpose of the commission shall be to preserve, restore, maintain and promote as a state park or historic site the land and relics of the Tannehill furnace and, in recognition of the important part played by the iron and steel industry in the development of this state, to exhibit this old furnace as an example of the process of making iron in this state's early days."

Section 41-9-321 provides for the appointment of sixteen commission members. Section 41-9-322 provides that no member of the commission shall receive any pay for his services, but provision is made for repayment of expenses by the commission. Section 41-9-323 provides for meetings, organization, and procedures.

Section 41-9-324 constitutes the commission a body corporate:

"The commission shall constitute a body corporate and shall have, in addition to those set forth specifically in this division, all powers necessary or convenient to effect the purposes for which it has been established under and by the terms of this division, together with all powers incidental thereto or necessary to the discharge of its said powers and duties."

And § 41-9-325 designates the commission as a state agency:

"The commission shall be a state agency and shall have exclusive control over the Tannehill furnace and foundry and the area appurtenant thereto, the memorial park established under this division, all improvements and exhibits located thereon and any additions constructed, created, leased, acquired or erected in connection therewith."

Section 41-9-326(a) authorizes the commission to acquire the "old Tannehill furnace" property owned by the University of Alabama, whose board of trustees was itself authorized "to lease or to deed ... such lands and appurtenances thereto to the commission." The commission, under this subsection:

"is further authorized to lease, accept as a gift or loan or otherwise acquire any other property, real or personal, including gifts or bequests of money or other things of value to be used in fulfilling the purpose for which it is established or for any auxiliary purpose incidental or appropriate thereto.

"(b) The commission is also authorized to borrow money and issue revenue bonds in evidence thereof, but no such bonds shall be general obligations of the state of Alabama or any agency or any political subdivision thereof. Nor shall such commission pledge to the payment of any such loans the land, buildings, exhibits or other appurtenances thereto. It may, however, pledge to the repayment thereof the proceeds derived from admission fees or charges or other fees or charges made in connection with such park or historical site."

Section 41-9-327 provides for operation of the park; § 41-9-328 allows county governing bodies to appropriate unpledged public funds to the commission's use. Section 41-9-329 grants tax exempt status to the commission, its properties, income, leases, agreements, bonds and bond income. And in § 41-9-330(a) all full-time employees of the commission "shall be treated as state employees for the purpose of participating in any insurance programs provided for state employees." In subsection (b), the commission is empowered to pay employer's contributions out of appropriated or other available funds, and authorized to deduct employees' contributions for such programs.

Plaintiff's first argument is based upon the "separate entity doctrine." Applying that doctrine, plaintiff asserts that these statutory provisions created neither a State agency nor a State subdivision, but a public corporation, a separate entity from the State of Alabama. If this is a tenable position, it follows that the commission is not "the State" under the provisions of § 14 of the Constitution.

Admittedly, there is some language describing the commission as "a body corporate," § 41-9-324. Facially, this language would tend to establish the plaintiff's position. On the other hand, another section, § 41-9-325, describes the commission as "a state agency," thus lending credence to the defendants' position. Resolution of the issue cannot turn on the use of labels. Armory Commission of Alabama v. Staudt, 388 So.2d 991 (Ala.1980). Indeed,

"[w]hether a lawsuit against a body created by legislative enactment is a suit against the state depends on the character of power delegated to the body, the relation of the body to the state, and the nature of the function performed by the body...." Armory Commission of Alabama, 388 So.2d at 993.

We find nothing in either Curtis v. Alabama Elk River Development Agency, Inc., 372 So.2d 353 (Ala.Civ.App.1979); Knight v. West Alabama Environmental Improvement Authority, 287 Ala. 15, 246 So.2d 903 (1971); or Edmonson v. State Industrial Development Authority, 279 Ala. 206, 184 So.2d 115 (1966), requiring a holding that this commission is a separate entity from the State of Alabama.

Armory Commission of Alabama, supra, followed the analysis utilized in State Docks Commission v. Barnes, 225 Ala. 403, 143 So. 581 (1932), to determine whether the instrumentality in question was an arm of the State. Interestingly enough, in Barnes it was conceded that the State docks operation was a business undertaking. Nevertheless, other factors pointed to a strong nexus with the State itself, e.g., the use by the commission of State-owned land, and operation by the commission as agent for the State and not independently. In Armory Commission of Alabama, supra, it was noted that State appropriations flowed to the commission from the State Military Department, and that the governor was authorized by legislation to use military appropriations to pay the commission's expenses. In both of these cases, moreover, the funds of each were found to be directly affected by a lawsuit because subjected to liability, and thus a lawsuit against either was tantamount to a lawsuit against the State itself.

Considering the legislative language of the various sections together, we have concluded, likewise, that the Tannehill commission was created as an arm of the State of Alabama, existing to carry forth an important function of our State government: holding, maintaining, and preserving state lands of historical significance for the benefit of our citizens. This governmental function is recognized by the legislative language which repeatedly emphasizes the commission's purpose to preserve the Tannehill lands as an exhibit of the state's iron- and steel-making heritage. Violations of the commission's rules are made misdemeanors. The commissioners are vested with police power to make arrests, prefer charges, and to constitute deputy police officers. The commission is exempt from taxes, and its employees...