This is an appeal by the School Board from a judgment entered upon a jury verdict in favor of Dobervich, which awarded him $10,000 damages. The judgment is reversed and the case is remanded for further proceedings in accordance herewith.
Dobervich was employed as a teacher in the high school distributive education program by Central Cass Public School District No. 17 from 1973 until the spring of 1977. By letter dated March 21, 1977, the Board notified Dobervich that it contemplated nonrenewal of his contract because of:
1. Poor motivation of the low academic achiever.
2. Substandard student project work.
3. Student attitude shows reluctance rather than cooperation in the learning process.
After a special board meeting held pursuant to the provisions of § 15-47-38(5), NDCC, the Board determined not to renew Dobervich’s contract for the 1977 — 1978 school year. Dobervich brought an action in the district court seeking (1) to restrain the Board from filling the position with another teacher, (2) to require the Board to issue him a renewal contract, or, in the alternative, (3) damages. He demanded a jury trial (Rule 38(b), NDRCivP).
The Board, in its answer, denied certain conclusions pleaded in the complaint, alleged that the position previously held by Dobervich had been filled, and included therein a motion to dismiss on the ground that the complaint failed to state a cause of action (Rule 12(b)(5), NDRCivP). The Board did not respond to the demand for jury trial. Dobervich did not press further for an injunction or mandamus order. The Board did not get a ruling on its motion to dismiss that was in the answer.
The suit was tried to a jury. When Do-bervich rested his case, the Board made motions, in effect, as follows:
A. That the following issues be withdrawn from the jury:
*189 (1) Whether or not the Board acted in bad faith (because it was not alleged);
(2) Whether or not the reasons for nonrenewal were frivolous and arbitrary and whether or not these reasons related to Dobervich’s ability, competency and qualifications as a teacher;
(3) Whether or not the Board complied with the statutes with respect to providing an explanation, discussion and confirmation of the reasons for contemplated nonrenewal;
(4) Whether or not the Board gave serious consideration to the damage that could result to the professional stature and reputation of Mr. Dober-vich in reaching the decision not to renew his contract; and
(5) Whether or not the process was handled with consideration and dignity, giving maximum consideration to basic fairness and decency.
B. For a directed verdict of dismissal under Rule 50, NDRCivP, on the grounds that:
(1) There was no evidence that the Board had not acted in good faith;
(2) All of the evidence and all inferences therefrom showed that the non-renewal was neither frivolous nor arbitrary but that the reasons for nonre-newal directly related to Dobervich’s ability, competency and qualifications as a teacher; and
(3) There was no evidence that would support a finding by the jury that the reasons for nonrenewal were not discussed, explained and confirmed.
The trial court denied the motion to dismiss and the motion to withdraw issues from the jury, stating: . . according to my understanding of the statutes and of the applicable case laws, particularly the so-called
Baker
case . . .” [Baker
v. Minot Public School Dist. No. 1,
The case was then presented to the jury under instructions that were excepted to by the Board. The jury was not directed to return an advisory verdict. No special verdicts were requested. The jury returned a •general verdict in favor of Dobervich and against the Board, and assessed $10,000 damages. Judgment was entered thereon, plus costs, and the Board appealed.
Other than those limited appeals authorized by § 15-53.1-32, NDCC, local school decisions are not appealable to the courts. This is not an appeal of an administrative determination and we must therefore distinguish our role and that of the trial court from that applicable in state agency appeals where the Administrative Agencies Practice Act (Ch. 28-32, NDCC) governs, as well as statutory appeals from local administrative determinations, such as from decisions of boards of county commissioners, § 11-11-39, NDCC. The law and precedent applicable here involves Chapters 32-05, 32-06 and 32-34, NDCC, and cases construing those statutes.
Dobervich brought this as an independent suit against the Board, seeking the equitable remedies, injunction and mandamus, and in the alternative, damages. Although, as in most opinions, there may be some language in
Baker v. Minot Public School Dist. No. 1, supra,
which may be ambiguous, the majority opinion treated the suit, which involved a nonrenewal and not a termination, as one in equity when it said, “Equity is not inflexible . . .” and “A lack of precedent is no obstacle to equitable relief ..”
Baker v. Minot Public School Dist. No. 1, supra,
The first issue that we must resolve is whether or not it was error for the trial court to permit the questioned issues to go to the jury. Recently, in
Dorgan v. Kouba,
Even though one form of action has been substituted for actions at law and in equity, a distinction persists as far as the right to a jury trial is concerned. See 50 C.J.S. Juries § 23. This State has been more liberal than most in construing the guarantee of jury trial. See
Lehman v. Coulter,
Generally, where both damages and an injunction are sought, the parties are entitled to a jury trial as to the damage claim unless the damage claim is merely incidental to and dependent on the right to an injunction. See 50 C.J.S. Juries § 35c, and
Harkless v. Sweeny Independent School District,
This court said in
Gresens v. Martin,
“It has always been the province of the court in equity to determine issues of fact as well as of law; and, while the court may submit questions of fact to the jury, this is purely a matter of discretion, and the verdict in such cases is merely advisory.”
Should the verdict in this case be considered advisory only? Rule 39(c), NDRCivP, provides:
“In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury or the court, with the consent of both parties, may order a trial with a jury whose verdict has the same effect as if trial by jury had been a matter of right.”
In
Sprenger v. Sprenger,
Rule 52(a), NDRCivP, requires that:
“In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon . . . .”
If there was “consent of both parties” to trial by jury in this case, the jury verdict would consequently be given the same effect, on appeal, as any jury verdict. However, if there was no “consent of both *191 parties” we would give the verdict no consideration on appeal but would look to the trial court’s findings of fact and conclusions of law.
One of the clearly established rules applicable to effective appeals to this court is that generally one cannot raise objections for the first time on appeal. We said in
State v. Haakenson,
Was the question appropriately raised in this case in the trial court? Counsel for the Board argued at one point during trial that this was simply a breach of contract suit. The only objection in the record or in this court is the motion hereinbefore described, demanding the withdrawal of issues from the jury.
French v. State Farmers’ Mut. Hail Ins. Co.,
In
Dickinson Ed. Ass’n v. Dickinson Public Sch.,
“It is often said that in many situations it is difficult, perhaps indeed impossible, to make a clean distinction between fact and law; that the difference is one of degree, that the relation of fact and law can be described as a spectrum with finding of fact shading imperceptibly into conclusion of law.”
The same author in Judicial Review: Question of Fact, 69 Harvard L.Rev. 1020 (1955-1956), said: “But it is generally held that the adequacy of the evidence adduced to support a finding of fact is a question of law.”
In
Sand v. Red River Nat. Bank & Trust Company,
*192
As one of the United States Supreme Court justices pointed out in
Commissioner v. Duberstein,
“To be sure, conciseness is to be strived for, and prolixity avoided, in findings, but . there comes a point where findings become so sparse and conclusory as to give no revelation of what the District Court’s concept of the determining facts and legal standard may be. See Matton Oil Transfer Corp. v. The Dynamic, 2 Cir.,123 F.2d 999 , 1000-1001. Such concluso-ry, general findings do not constitute compliance with Rule 52’s direction . . . .
It appears quite obvious that this court and our trial courts have been attempting, in the absence of adequate legislation, to design remedies or solutions for school board-teacher disputes. Some inconsistency should be anticipated.
Our examination of suits involving school board-teacher disputes leads us to distinguish cases involving dismissal or termination from cases involving nonrenewal of a contract.
In
Mootz v. Belyea,
Seher v. Woodlawn School Dist. No. 26,
Starting with the first nonrenewal suit,
Hennessy v. Grand Forks School District # 1,
The opinion in
Dathe v. Wildrose School District No. 91,
Huso v. Bismarck Public School Board,
On the same date that this court handed down the decision in
Huso, supra,
it decided also
Henley v. Fingal Public School District # 54,
Pollock v. McKenzie County Public School Dist. # 1,
Baker v. Minot Public School Dist. No. 1, supra, likewise involved nonrenewal where this court treated the damages as only incidental to and dependent upon the right to an injunction or mandamus.
Although §§ 15-47-27 and 15-47-38, NDCC, have at times been mistakenly referred to as “continuing contract law,” they do not provide any remedies under either contract or tort. No contract is breached by a nonrenewal. See
Bottineau Public Sch. Dist. # 1 v. Currie,
Dobervich was not, as a matter of right, entitled to a jury trial. The court will review the nonrenewal decision by the Board to determine whether the procedural steps required by the statute have been followed and whether, under the facts of the case, a nonrenewal is authorized. Under the doctrine of separation of powers and § 94 of the North Dakota Constitution, a court must exercise restraint in reviewing nonjudicial functions and should not substitute its judgment for that of the Board. See
Allstate Insurance Co. v. Knutson,
We point out specifically that we said in
Rolland, supra,
In the light of these conclusions, there is no reason for us to consider other issues raised by the Board. “Questions, the answers to which are not necessary to the determination of the case, need not be considered.”
Hospital Services v. Brooks,
Because a public question is involved, no costs will be allowed on this appeal.