Roberts v. South Oklahoma City Hospital Trust

*1084OPALA, Justice, with whom KAUGER, Justice, joins, concurring.

The issue dispositive of this appeal is whether the hospital entity haled into court as a wrongful-death defendant is a private business enterprise disguised to look like an appendage to Oklahoma City’s government or whether it is a true public agency. The court concludes that the hospital’s status as a public trust constituting a political subdivision within the meaning of 51 O.S. 1981 § 152(6)1 is “illusory.”2 Although I join the court’s judgment as well as its opinion, I write separately to add that no nonpublic enterprise — one that neither generates nor receives public funds and is not charged by law with the responsibility of conducting some public business — may lawfully be included, however inadvertently, in any legislatively-fashioned class of entities that qualify for governmental immunity from tort liability. This is so because, under Art. 5, § 51, Okl.Const., no “association, corporation, or individual” may be granted “any exclusive rights, privileges, or immunities” within this State.3 Inasmuch as such an inclusion stands prohibited by the clear command of our fundamental law, whenever a tort defendant invokes the shield of The Governmental Tort Claims Act, 51 O.S.Supp.1985 §§ 151 et seq., and its immunity claim is challenged, the court must conduct a meaningful inquiry into the defendant’s true status as a de jure as well as de facto public entity that falls within the protected statutory class.

This private-hospital entity cannot pass muster as a public enterprise. Although it may have been properly created as a “public trust” and it superficially meets the definitional parameters set forth in 51 O.S. 1981 § 152(6), its tort immunity claim must fail. The law’s favored status of a governmental tort liability defendant may not be conferred either by the legislature or by the courts upon an entity that merely masquerades as a public body. One who seeks the mantle of protection afforded by The Governmental Tort Claims Act, or any of its antecedent versions, must be in a public service enterprise both de jure and de facto. Art. 5, § 51, Okl.Const.4

Legislative inclusion of a de facto nonpublic body into a public-entity class statutorily shielded from the general norms of tort liability also violates those provisions in Art. 5, § 46, Okl.Const.,5 which prohibit *1085the regulation of limitations of actions and of court procedure by “special” acts. By force of this section the limitation period, as well as the general norms of trial practice, must be the same for all nonpublic defendants haled to answer either for a like tort or for one that falls within an identical legal category. Since this hospital entity is de facto a private business enterprise, it is constitutionally subject to the same adjective law as that which governs all other similarly situated private tort-feasors.6

The plaintiff should hence be allowed to proceed free from all the statutory impediments that shield public agencies.7

. Now repealed. See 51 O.S.Supp.1985 § 152(8). Hospitals organized as a public trust are now excluded from the definition of a "political subdivision." The terms of 51 O.S.Supp. 1985 § 152(8) provide:

"8. “Political subdivision’ means:
a. a municipality,
b. a school district,
c. a county,
d. a public trust where a city, town, school district or county is a beneficiary, provided, that for the purposes of this act, a public trust shall not include any hospital operating under a trust authority, and all their institutions, instrumentalities or agencies." [Emphasis mine]

. Oklahoma City’s interest as a "public" beneficiary of the hospital trust is indeed "illusory." It may be characterized as limited to no more than a genre of spes successionis — a mere hope of receiving whatever, if anything, will remain after the dissolution of the hospital trust has been effected by the sole will of the Trustees in control. Spes succession^ is defined as hope of succession. Webster’s New International Dictionary of the English Language, Second Edition, Unabridged, p. 2420 [1961].

In Art. VIII of the hospital trust indenture it is provided that ”[t]he beneficiary shall have no legal title, claim or right to the Trust Estate, its income, or to any part thereof or to demand or require any partition or distribution thereof. * * The beneficiary shall be entitled solely to the benefits of this trust, as administered by the Trustees hereunder, and at the termination of the Trust... and then only, the beneficiary shall receive the residue of the Trust Estate.” [Emphasis mine]

. See Loyal Order of Moose, Lodge 1785 v. Cavaness, Okl., 563 P.2d 143, 93 A.L.R.3rd 1234 [1977].

. As a de facto private hospital this wrongful-death defendant must be treated as a member of no other class than that of private tortfeasors answering the same or like legal claims.

. The terms of Art. 5, § 46, Okl.Const., provide in pertinent part:

“The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing:

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Regulating the practice or jurisdiction of, ... in judicial proceedings or inquiry before the courts, ...

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For limitation of civil ... actions;

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. Loyal Order of Moose, Lodge 1785 v. Cavaness, supra note 3; City of Tulsa v. Macura, 186 Okl. 674, 100 P.2d 269, 271 [1940]; City of Tulsa v. Wells, 79 Okl. 39, 191 P. 186 [1920]; City of Tulsa v. Whittenhall, 140 Okl. 160, 282 P. 322 [1929]; City of Tulsa v. McIntosh, 141 Okl. 220, 284 P. 875 [1930] and City of Tulsa v. Adams, 151 Okl. 165, 3 P.2d 155 [1931]. See also Tabler v. Wallace, 704 S.W.2d 179, 185-186 [Ky.1986], where the Kentucky counterpart of Art. 5, § 46, Okl.Const., was similarly construed to prohibit the legislature from passing a statute of limitation applicable solely to a "special" class of tortfeasors.

. The effect of the court’s pronouncement in the case at bar — declaring Oklahoma City’s governmental interest in the public trust that operates the hospital entity in suit to be illusory — need not be restricted to future disputes over a tort defendant’s status as a public body both de jure and de facto. Cf. Vanderpool v. State, Okl., 672 P.2d 1153 [1983]. Today’s holding does not break new ground. It has been unmistakably foreshadowed. Oklahoma jurisprudence long ago firmly rejected the notion that the common law’s doctrine of sovereign or governmental immunity could be extended to private enterprise clad in public clothing. State v. Bone, Okl., 344 P.2d 562 [1959]; Moran v. State ex rel. Derryberry, Okl., 534 P.2d 1282 [1975]; see also Spector, State Sovereign Immunity In Tort: Oklahoma's Long and Tortuous Road, 34 Okla.L.Rev. 526, 549-551 [1981].