dissenting:
This court holds that a School Board has no authority to establish a mandatory retirement age. The reasoning that no statute expressly authorizes such action, and therefore the authority is non-existent, carried to any logical conclusion and generally followed, would cripple the Board’s authority in such manner that it could not exercise its governing powers effectively. Such a result must also apply to governing boards of cities, towns, counties, any other political corporations or subdivisions of the state, the state itself, and all of its boards, commissions and departments. Implied powers would become virtually extinct.
Surely, the majority would not hold that a School Board does not have the authority and duty to establish an appropriate personnel policy. However, the net result of today’s decision is to require statutory authority in “express words” for each provision in the policy. Thus, only the Legislature could authorize specific provisions. There would be nothing for the local School Board to do, and the policy of every school *622district in the state would be identical. I simply cannot agree that governing boards in this state are so severely ham-strung.
The authority of the School Board to set a mandatory retirement age was derived from 70 O.S.Supp.1983 § 5-117(E) [now 70 O.S.Supp.1990 § 5-117 E] which is as follows:
The Board of Education of each school district shall adopt and maintain on file in the office of the superintendent of schools an appropriate personnel policy and sick leave guide. The guide shall be made available to the public.
In an early case, Board of Education of Oklahoma City, v. Cloudman, 185 Okl. 400, 92 P.2d 837, 841 (1939), the Supreme Court discussed the discretionary powers of the School Boards to manage the schools and stated:
The School Board has and can exercise those powers that are granted in express words; those fairly implied in or necessarily incidental to the powers expressly granted, and those essential to the declared objects and purposes of the corporation.
I find the authority to adopt a mandatory retirement policy to be discretionary and fairly implied in the power to adopt a personnel policy. Required retirement from teaching at age seventy (70) is neither arbitrary nor capricious. The courts should not substitute their judgment or discretion for that of the local School Board. The Board did not exceed its authority.
Carlyle contends the mandatory retirement policy violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. While there appears to be no previous authority in Oklahoma, mandatory retirement in other jurisdictions has been upheld. Lewis v. Tucson School District, 23 Ariz.App. 154, 531 P.2d 199 (1975) cert. denied, 423 U.S. 864, 96 S.Ct. 123, 46 L.Ed.2d 92. There, the appellate court recognized that while some teacher’s abilities over a mandatory retirement age may not be lessened, it was not an arbitrary or irrational distinction to allow such a mandatory retirement policy.
In Oklahoma, 25 O.S.Supp.1985 § 1301 prohibits discrimination in employment of persons between the ages of forty (40) and seventy (70). It does not prohibit mandatory retirement at the age of seventy (70). I am not aware of any statute or case law in this jurisdiction forbidding a mandatory retirement policy at age 70.
Last but certainly not least, I call attention to a matter which is or has been overlooked or ignored by the parties, the trial court, and now this Court. In my view, Carlyle’s contentions and the decision of this Court create serious constitutional issues which may not be waived. Should Article 10, Section 26, of the Oklahoma Constitution be applied to this situation?
I DISSENT.