University of South Carolina v. Batson

Lewis, Chief Justice.

This action involves the validity of a retirement policy established and enforced by the University of South Carolina, which mandates that teaching faculty retire at the age of sixty-five (65) years. The defendants are tenured professors at the University and challenge their mandatory retirement at age sixty-five (65) upon the ground that Section 9-1-1530 of the 1976 Code of Laws establishes a mandatory retirement age of seventy (70) years and the University is without authority to alter or vary that age.

The position of the defendants is supported by the plain terms of the statute. Section 9-1-1530 provides:

Any employee in service who has attained the age of seventy years shall be retired forthwith . . ..

The remainder of the statute carves out exceptions whereby employment may be extended beyond seventy (70) years. *244There are no provisions for retirement of “employees” prior to the age of seventy (70). In the absence of any exceptions for retirement of “employees” prior to seventy (70), it must be concluded that the General Assembly intended that there be none. When the statute mandates retirement at seventy (70), without exception, it clearly sets seventy (70) years as both the maximum and minimum mandatory retirement age.

It is manifest that where the language of a statute is plain and unambiguous, there is no occasion for construction by this court. As stated in 82 C. J. S. Statutes § 322:

An . . . unambiguous statute cannot be extended beyond its plain and obvious meaning, or restricted to, or confined in operation within narrower limits or bounds than manifestly intended by the legislature.

The theory, upon which it is sought to write into the statute a non-existent provision authorizing mandatory retirement at age sixty-five (65) years, or presumably any other age less than seventy (70) that the University might conclude proper, rests solely upon the strained implication that the failure of the Legislature to specifically negate all alternatives renders the statute ambiguous. This position is contrary to the general rule of statutory construction that affirmative words imply a negative of that which is not affirmed. See 82 C. J. S. Statutes § 336; Home Building and Loan Association v. City of Spartanburg, 185 S. C. 313, 194 S. E. 139; Little v. Town of Conway, 171 S. C. 27, 171 S. E. 447. Thus the affirmative language that employees “shall be retired” at age seventy (70) implicitly proscribes their mandatory retirement prior to that age. The plain language of the statute allows for no interpretation restricting its application.

The legislative history of the South Carolina Retirement Act conclusively supports the foregoing conclusion. When this statute was initially enacted in *2451945, employees of the University were classified as “teachers” not “employees.” Under the 1945 Act teachers and employees were both retired at age sixty-five (65) ; however, employees could continue to work until age seventy (70) with employer approval.

In 1949 the South Carolina Retirement Act was amended to reclassify college professors as “employees”. 46 Stat. 424. At the same time the basic retirement age for employees was increased to age seventy (70) while teachers continued to be involuntarily retired at age sixty-five (65). See Code Sections 9-1-10, 9-1-1520, 9-1-1530. The 1949 amendment removed every basis for a contention that the General Assembly intended to leave the mandatory retirement of professors to the discretion of the University.

It is argued, however, that Code Section 59-117-40, the University’s Enabling Act, authorizes it to fix minimum retirement ages. While this statute grants broad power to the University, it is not granted the power to contravene statutory laws of the State, either by rule or private contract. Further the Enabling Act relied upon was amended to its present form in 1953, some four years after the 1949 amendment to the Retirement Act. There is nothing in the Enabling Act to indicate that the Legislature in 1953 intended to authorize the University to establish its own retirement schedule, in the light of the 1949 amendment to the Retirement Act wherein the Legislature succinctly and unequivocally determined the appropriate age for the retirement of professors.

The rationale underlying the University’s determination that professors should retire at sixty-five (65) is totally irrelevant to a determination of the present issue since, in any event, there is a complete absence of statutory auhtority for such rationalization.

Therefore, the retirement policy of the University, requiring professors to retire at sixty-five, contravenes Section *2469-1-1530 which sets the mandatory retirement age at seventy (70).

Rhodes and Gregory, JJ., concur. Ness, J., concurs in result. Littlejohn, J., dissents.