Annotate this Case

156 S.E.2d 702 (1967)

271 N.C. 357


No. 32.

Supreme Court of North Carolina.

September 20, 1967.

*705 Van Winkle, Walton, Buck & Wall and Herbert L. Hyde, Asheville, for plaintiff appellees.

Atty. Gen. T. W. Bruton and Christine Y. Denson, Staff Atty., for defendant appellant.

BOBBITT, Justice.

In Bridges v. City of Charlotte, 221 N.C. 472, 20 S.E.2d 825, the constitutionality of Chapter 25, Public Laws of 1941, as amended by Chapter 143, Public Laws of 1941, was upheld. Although not the basis of decision, the opinion of Seawell, J., for the Court, strongly intimated, and the concurring opinion of Barnhill, J. (later C. J.), in which Winborne, J. (later C. J.), concurred, expressly stated: "The Retirement payment provided by this act constitutes delayed compensation in consideration of services rendered. It is compensation for public services. Its purpose is to induce experienced and competent teachers to remain in service and thus promote the efficiency and effectiveness of the educational program." In Brumley v. Baxter, *706 225 N.C. 691, 697, 36 S.E.2d 281, 285-286, 162 A.L.R. 930, 936, the opinion of Devin, J. (later C. J.), contains this statement: "In Bridges v. [City of] Charlotte, 221 N.C. 472, 20 S.E.2d 825, it was declared that payments from the retirement fund to teachers after they had ceased to serve were not offensive to Art. I, sec. 7 of the Constitution, in that they were regarded as in the nature of delayed compensation for public services rendered, or delayed payments of salary." See also, Motley v. State Board of Barber Examiners, 228 N.C. 337, 344, 45 S.E.2d 550, 554, and Bryant v. Woodlief, 252 N.C. 488, 498, 114 S.E.2d 241, 248.

It appears from the cases cited that this Court has accepted as established that the allowances to which a member of the System is entitled upon retirement constitute compensation for public services previously rendered and therefore do not violate Article I, Section 7, of the Constitution, providing "(n)o person or set of persons are entitled to exclusive or separate emoluments or privileges from the community but in consideration of public services."

Attention is called to the statutory provisions set out below.

Chapter 195, Session Laws of 1943, authorized the employment "during the continuation of the present World War, and for six months after its termination, or at the termination of the school term in which such teachers shall be engaged," of persons who had retired on account of age. This statute provided expressly that, during the period of such re-employment all "service retirement benefits to which such person is entitled" would be suspended. The provisions of this statute were codified as G.S. § 135-15 in the original (1943) edition of the General Statutes.

Two sections of Chapter 1056, Session Laws of 1949, are pertinent. Section 8 thereof, which is now codified as G.S. § 135-18, provides: "The board of trustees of the Teachers' and State Employees' Retirement System may establish and promulgate rules and regulations governing the re-employment of retired teachers and employees." Section 9 thereof provides: "Section 135-15 of the General Statutes is hereby repealed."

Defendant bases its position on the Resolution adopted by its Board of Trustees on October 13, 1965, effective January 1, 1966, which Resolution provides, (1) with reference to full-time employment, that "Retirement allowances will be suspended for each full calendar month of employment," and (2) with reference to part-time employment, that "Retirement allowances will be suspended for the balance of the calendar year after earnings in such part-time employment equal $1500."

Each plaintiff retired after having attained the age of sixty years, Bird on July 31, 1957, and Harrill on June 30, 1965. Each retired subsequent to the repeal of G.S. § 135-15 of the original (1943) edition of the General Statutes, and subsequent to the enactment of Section 8, Chapter 1056, Session Laws of 1949, now codified as G.S. § 135-18. Each retired prior to the adoption of said Resolution by said Board of Trustees on October 13, 1965.

Obviously, the said Resolution did not affect retirement allowances paid to plaintiffs during years prior to 1966, the subject of defendant's cross claims. What effect, if any, this Resolution had on plaintiffs' rights with reference to their accrued retirement allowances for 1966 is the question for decision.

When plaintiffs retired, and since the date of their retirement, no statutory provision has provided, either expressly or by implication, that their acceptance of public employment would suspend or otherwise impair their existing right to retirement allowances. Unless provided or authorized by statute, we are of opinion, and so decide, that plaintiffs' acceptance of part-time re-employment did not suspend or otherwise affect their retirement allowances. *707 See Annotation, "Effect of re-entry into public employment on retirement pension previously granted to public officer or employee." 162 A.L.R. 1469 et seq. Decisions cited therein (p. 1470) hold that "under a statute not forbidding, either expressly or by implication, the re-entry into public employment of a public officer or employee retired with a pension, * * * a subsequent re-employment does not operate as a revocation or suspension of the pension granted." Also, see Maybury v. Coyne, 312 S.W.2d 455 (Ky.).

We find it unnecessary to determine on this record to what extent, if any, plaintiffs' rights to their retirement allowances became vested so that the General Assembly could not by legislation constitutionally impair such rights. See Annotation, "Vested right of pensioner to pension," 52 A.L.R.2d 437. See also Dillon v. Wentz, 227 N.C. 117, 41 S.E.2d 202.

Decision on this appeal turns on whether the statutory provision enacted in 1949 and now codified as G.S. § 135-18 conferred upon said Board of Trustees authority to establish and promulgate a rule or regulation providing that accrued retirement allowances should be suspended under prescribed conditions if retired teachers or employees accept part-time re-employment. In our opinion, the general language of this statutory provision did not confer upon said Board of Trustees, expressly or by implication, authority to adopt the resolution on which defendant relies. G.S. § 135-18 contains no reference to retirement allowances. The subject to which the contemplated rules and regulations will relate is unclear. Are they to relate to the readmission into the System of persons who retired prior to attaining the age of sixty years as provided in G.S. § 135-3(7)d, referred to below? Are they to relate to the prohibition of or limitations upon the re-employment of retired persons?

G.S. § 135-18 refers expressly to "the re-employment of retired teachers and employees." Teachers and employees are defined in G.S. § 135-1, as amended by Chapter 750, Session Laws of 1965, as "full-time" employees. G.S. § 135-18 contains no reference to "emergency, part-time, temporary teaching," the type of part-time re-employment in which plaintiffs were engaged.

Plaintiffs' rights to retirement allowances had accrued and become payable in accordance with statutory provisions. No express authority to prescribe conditions for the suspension of such rights was conferred upon the Board of Trustees by G.S. § 135-18; and, in our opinion, authority to suspend accrued statutory rights may not be reasonably implied from the general terms of G.S. § 135-18.

In our opinion, and we so hold, the authority, if any, conferred by G.S. § 135-18 is insufficient to support a resolution which, under the conditions set forth therein, purports to suspend plaintiffs' rights to their accrued retirement allowances on account of their recall for "emergency, part-time, temporary teaching."

It is noteworthy that the statutory provisions now comprising G.S. § 135-3(7) are based on Chapter 561, Session Laws of 1951. Subsection (d) thereof, relating to retirement prior to the attainment of the age of sixty years and subsequent employment and membership in the System, provides, inter alia, "(u)pon his subsequent retirement, he shall be entitled to an allowance computed, subject to the provisions of § 135, in accordance with such rules and regulations as the board of trustees may establish and promulgate as provided in § 135-15." As set forth above, the statute codified as G.S. § 135-15 was repealed in 1949. Moreover, it contained no provision for the establishment and promulgation by the Board of Trustees of rules and regulations. While not determinative, the confusion in the statutory provisions lends support to our view that the terms of the statute now codified as G.S. § 135-18 are too *708 vague and general to be considered authority for adoption of a resolution suspending plaintiffs' rights in respect of their accrued retirement allowances.

In view of the foregoing, it is unnecessary to consider whether G.S. § 135-18, if construed as conferring authority on the Board of Trustees to suspend plaintiffs' accrued statutory rights, would be invalid as violative of the constitutional principle that the General Assembly cannot delegate legislative power and, where authority is conferred on a commission or board, "the legislative body must declare the policy of the law, fix legal principles which are to control in given cases, and provide adequate standards for the guidance of the administrative body or officer empowered to execute the law." Carolina-Virginia Coastal Highway v. Coastal Turnpike Authority, 237 N.C. 52, 61, 74 S.E.2d 310, 316; 2 Strong, N. C. Index 2d, Constitutional Law § 7.

For the reasons stated, the judgments of the court below are affirmed.