State Docks Commission v. Barnes

Decision Date06 October 1932
Docket Number1 Div. 723.
Citation225 Ala. 403,143 So. 581
PartiesSTATE DOCKS COMMISSION v. BARNES.
CourtAlabama Supreme Court

Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.

Action for wrongful death by Mary E. Barnes, as administratrix of the estate of Wilmer P. Barnes, deceased, against the State Docks Commission. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

S. P Gaillard and Stevens, McCorvey, McLeod, Goode & Turner, all of Mobile, and Thos. E. Knight, Jr., Atty. Gen., and Frontis H. Moore, Asst. Atty. Gen., for appellant.

Taylor & Taylor and Harry T. Smith & Caffey, all of Mobile, for appellee.

FOSTER J.

The concrete question to be here considered has been narrowed to a single inquiry: Can the "board or body known as the State Docks Commission" be held liable in an action at law for damages for the death of a person occasioned by the negligent conduct of its servant, agent, or employee while acting in the line and scope of his employment?

Amendment No. 12 of the Constitution of Alabama authorizes the state "at a cost of not exceeding ten million dollars [to] engage in the work of internal improvement, or promoting [etc.], and operating all harbors and seaports within the state [etc.], provided, that such work or improvement shall always be and remain under the management and control of the state, through its State Harbor Commission, or other governing agency." The Legislature of 1923 undertook to carry into effect the authority thereby conferred. It authorized the state, through the agency of the State Docks Commission, to engage in the construction, maintenance, operation, etc., of harbors and seaports in the state; and that all such facilities shall always be and remain under the management and control of the state, through such governing agency as then or thereafter created by law. It then created as such agency the State Docks Commission, composed of three members appointed by the Governor. It is repeatedly emphasized that such commission is the agency of the state through which the state will construct and operate the harbor. Acts 1923, p. 330, section 2526 et seq., Code.

The Legislature of 1927 (Acts p. 2 et seq.) made provision for a continuance of such commission as thus constituted (sections 2 and 3), and made it subject to examination by the state examiner of accounts and a board of censors appointed by the Governor (section 4), and for the numerous duties and powers of the commission as detailed. It also provided that in engaging in such internal improvement, the state, acting through said commission, shall have power to acquire, own etc., docks, compresses, warehouses, etc., subject to the approval of the Governor (section 7). It authorized the state, through said commission, to own and operate boats and tugs, railroad terminals, with sidings, switches, etc. (section 7). That the title to all property so acquired shall vest in the state; that its lessees shall be free of taxes (section 7), with the power of eminent domain (sections 7 and 8). All suits and other legal proceedings to enforce the rights of the state growing out of any of its transactions or operations authorized by this article shall be for and in the name of the state, conducted by the commission with the approval of the Governor (section 7). The operations shall be conducted in the name of the State Docks Commission, and it may contract current indebtedness necessarily incident to the prosecution of the work (section 9), and pay the expenses of carrying out the purposes designated (section 11). State bonds are provided for such purposes, and it may borrow money necessary for its operation, subject to fixed limitations. The commission fixes rates of charges for its services and for the use of its facilities to pay operating expenses and interest on the bonds and create a sinking fund (Code, § 2558). No officer whose salary exceeds $1,500 shall be appointed, nor expenditure made nor obligation incurred exceeding $5,000, without the approval of the Governor (Code, § 2561).

It may be conceded that the state in engaging in such enterprise is performing a business or corporate power and not a governmental function. In re Opinions of the Justices, 209 Ala. 593, 96 So. 487; Town of Athens v. Miller, 190 Ala. 82, 91, 66 So. 702; Hillman v. City of Anniston, 214 Ala. 522, 108 So. 539, 46 A. L. R. 89; Williams v. City of Birmingham, 219 Ala. 19, 121 So. 14; Rippe v. Becker, 56 Minn. 100, 57 N.W. 331, 334, 22 L. R. A. 857; State ex rel. Jones v. Froehlich, 115 Wis. 32, 91 N.W. 115, 116, 117, 58 L. R. A. 757, 95 Am. St. Rep. 894; State ex rel. Owen v. Donald, 160 Wis. 21, 151 N.W. 331, 350; In re Internal Imp. Fund, 24 Colo. 247, 48 P. 807; Lipinski v. Gould, 173 Minn. 559, 218 N.W. 123, 730; Philadelphia R. R. v. Mayor, etc., of New York (D. C.) 38 F. 159; City of Philadelphia v. Gavagnin (C. C. A.) 62 F. 617; Guthrie v. Philadelphia (D. C.) 73 F. 688.

But section 14 of the Bill of Rights of the Alabama Constitution provides that the state shall never be made a defendant in any court of law or equity. The state cannot consent to such a suit. This means not only that the state itself may not be sued, but that this cannot be indirectly accomplished by suing its officers or agents in their official capacity, when a result favorable to plaintiff would be directly to affect the financial status of the state treasury. Ex parte State of New York, 256 U.S. 490, 41 S.Ct. 588, 65 L.Ed. 1057; Pennoyer v. McConnaughy, 140 U.S. 1, 10, 11 S.Ct. 699, 35 L.Ed. 363; Comer v. Bankhead, 70 Ala. 493; White v. Ala. Insane Hospital, 138 Ala. 480, 35 So. 454; Ala. Girl's Ind. School v. Reynolds, 143 Ala. 579, 42 So. 114.

We do not think that the case of Finnell v. Pitts, 222 Ala. 290, 132 So. 2, is authority sustaining appellee in any respect. There, state officers had exceeded their legal authority and had taken property without due process, and applied it to state uses. The state was of course not liable nor suable, though the officers were the state highway commissioners acting for it in constructing a state road. The individuals were held to be personally liable for the tort which they committed, and could not justify their conduct, because it was not authorized by law. That was a suit against the individual tort-feasors, and the question was that of justification, and whether it was indirectly against the state. It was not a suit against the state highway commission as such, on the doctrine of respondeat superior. McCrary Co. v. Phillips, 222 Ala. 117, 130 So. 805; McComb v. U.S. Housing Corp. (D. C.) 264 F. 589; 25 R. C. L. 43, p. 408; McCallum, State Board of Harbor Comm. v. U.S. (C. C. A.) 298 F. 373; Sloan Shipyards Corp. v. U.S. Shipping Board, 258 U.S. 549, 42 S.Ct. 386, 66 L.Ed. 762.

We have repeatedly held that certain agencies of the state are its arms-parts of its body-and cannot be sued. They, however, refer to agencies which were constituted to perform its governmental functions and not its corporate powers in business enterprises. Ala. Industrial School v. Addler, 144 Ala. 555, 42 So. 116, 113 Am. St. Rep. 58; Ala. Girls' Industrial School v. Reynolds, 143 Ala. 579, 42 So. 114; White v. Ala. Insane Hospital,

138 Ala. 479, 35 So. 454; Cox v. Board of Trustees of University of Ala., 161 Ala. 639, 49 So. 814; Hughes v. Hartford Acc. & Ind. Co., 223 Ala. 59, 134 So. 461.

But that does not argue that when the state is engaged in business enterprises, it may be sued notwithstanding section 14 of the Constitution. There is no exception in that section. It necessarily prohibits the maintenance of a suit, if it is directly or indirectly a suit against the state.

The distinction is easily made between the Docks Commission and certain government and state corporations set up to engage in business enterprises to promote the public good. Those institutions are usually created in form as private corporations with capital stock issued to and owned by the government for the consideration of a stipulated sum of cash paid by the government into the treasury of such corporation to be used as such by it in the same respect as the capital of other corporations is so used. The law expressly authorizes suits against them in some instances, though this is not necessary. But being set up as a private corporation with capital stock, in all respects as any other private corporation in which private persons could be stockholders, the circumstance that it is to promote the public welfare and that the government owns the capital stock were held not to make it immune from liability to suit. Panama R. Co. v. Curran (C. C. A.) 256 F. 768; Salas v. U.S. (C. C. A.) 234 F. 842; Panama R. Co. v. Bosse, 249 U.S. 41, 39 S.Ct. 211, 63 L.Ed. 466; U.S. v. Strang, 254 U.S. 491, 493, 41 S.Ct. 165, 65 L.Ed. 368; Sloan Shipyards Corp. v. U.S. Shipping Board Emergency Fleet Corp., 258 U.S. 549, 42 S.Ct. 386, 66 L.Ed. 762; Rosenberg Bros. & Co. v. U.S. Shipping Board Em. Fleet Corp. (D. C.) 295 F. 372; U.S. Shipping Board Emergency Fleet Corp. v. Tabas (C. C. A.) 22 F. (2d) 398; Chase Nat. Bank v. U.S. Shipping Board (C. C. A.) 294 F. 641; U.S. ex rel. Skinner & Eddy Corp. v. McCarl, 275 U.S. 1, 48 S.Ct. 12, 72 L.Ed. 131; U.S. Shipping Board Em. Fleet Corp. v. South Atlantic Dry Docks Co. (C. C. A.) 300 F. 56; U.S. Grain Corp. v. Phillips, 261 U.S. 106, 43 S.Ct. 283, 67 L.Ed. 552; Fed. Sugar Refining Co. v. U.S. Sugar Equalization Board (D. C.) 268 F. 575; 36 Cyc. 919.

State banks were also set up as separate corporate entities managed and operated in all respects as other banks by their own officers, though the stock was owned by the state. Darrington v. Bank of Alabama, 13 How. 12, 14 L.Ed 30; Bank of U.S. v. Planters' Bank of Georgia, 9 Wheat. 9...

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