(concurring in part, dissenting in part).
ALTERNATIVE WRIT OF MANDAMUS
On October 26, 1982, the circuit court entered an alternative writ of mandamus commanding the School District to allow William Minor to continue teaching in the school district or, in the alternative, pay him the full amount of the contract.
William Minor's affidavit in support of this proceeding expressly stated, under oath, “That it will be impossible for Plaintiff to seek another job until at least semester time; that Plaintiff has no plain, speedy and adequate remedy in the ordinary course of law; the arbitrary and summary dismissal of the Plaintiff by the Defendants, if not remedied, will cause irreparible [sic] harm to Plaintiff for which he has no adequate remedy or action at law.” Said affidavit prayed for a Writ of Mandamus requiring the defendants to “forthwith cease and desist from hiring a replacement for him, and further for an Order requiring them to allow him to teach in the school district, or in the alternative directing them, as a consequence of the breach of their contract to pay him the full amount of the contract due him.”
The school district answered essentially with a two-pronged defense:. (1) that if William Minor had a contract, he had a plain, speedy and adequate remedy in law and that he should pursue it by a breach of action theory; (2) that a Writ of Mandamus would not lie for a discretionary act. Concerning defense number two, the school district took the position that it had a right to employ a teacher in the first instance per SDCL 13-8-39, SDCL 13-20-1, and had the discretion to fire a teacher at any time for plain violation of contract involving gross immorality, incompetency, or flagrant neglect of duty via SDCL 13-43-15.
DECISION OF LOWER COURT ON MANDAMUS ACTION
A Memorandum Decision was entered by the lower court on November 23, 1982. Findings of Fact and Conclusions of Law were entered pursuant thereto. A Judgment of Dismissal was entered denying the alternative Writ of Mandamus. Neither the Findings of Fact, Conclusions of Law, nor the Judgment bear a date. The instruments all state: “Dated this-day of _, 1982.” However, the documents were all filed on April 11, 1983. The essential part of the lower court’s formal holding is that the facts are in dispute and “there is no clear right of the plaintiff to receive the relief sought [emphasis supplied mine]; that the plaintiff has a plain and adequate remedy at law; that there are conflicting claims that must be settled as to whether a contract did in fact exist; that there does not exist sufficient grounds for the issuing of an alternative writ of mandamus.” Hence, Judgment of Dismissal of the Alternative Writ of Mandamus was entered. Perforce, William Minor was not, through Court Order, permitted to continue teaching and the school district was not required to pay him the full amount of the contract. Both of these remedies were sought and both were denied.
SCHOOL BOARD DECISION — DE NOVO TRIAL
An award of damages against a school district, predicated upon a decision of a school district refusing to continue the employment of a teacher, can it exist in a de novo trial of a school board decision? I believe not.
This action was an appeal under SDCL 13-46-1 (Appeals in School Matters). Under SDCL 13-46-6, it was tried de novo. As such, under the precedent of Dale v. Bd. of Educ., 316 N.W.2d 108, 111 (S.D.1982), “[t]he type of de novo hearing in the circuit court is thus limited in nature .... ” Furthermore, as held in Busker v. Bd. of Educ. of Elk Point, 295 N.W.2d 1 (S.D.1980), it is not a true trial de novo. The circuit court had absolutely no authority to award damages in this type of a special *53proceeding. It had no original jurisdiction to do so. It had a right to enter findings of fact and conclusions of law with respect to one matter, and one matter only, and that matter was whether the school board’s decision could pass muster under the South Dakota Administrative Procedures Act, SDCL 1-26-36. The circuit judge held, and correctly so, that William Minor had no contract of employment, thus affirming the one legal issue which was before him. Conclusion of Law III states: “Since there was not a strict compliance with SDCL 13-43-4, no binding contract exists.” Therefore, the circuit judge determined the school board acted legally, and he was not “clearly erroneous” in his determination thereof. See Dale, 316 N.W.2d at 112.
The notice of appeal was filed on December 7, 1982, under SDCL 13-46-3, from the decision of the school board dated September 13, 1982, which decision was to refuse to continue the employment of William Minor for the 1982-83 school year. No request or pleading was presented in the appeal to the lower court for damages for breach of contract or under any other type of legal theory. No such request would have been legally tenable. Damage actions are not triable in school board appeals.
Throughout the entire proceedings, from the inception of the alternative writ of mandamus, to and through these appellate proceedings, the school district has steadfastly maintained orally in the lower court, by written proposed findings of fact and conclusions of law, and by this appeal that William Minor cannot be awarded damages in this proceeding. I agree. If William Minor had an action at law for damages it was outside of the arena of a de novo hearing on an appeal taken from a decision by a school board under SDCL 13-46-1. See Ellis v. Herrick Ind. Sch. Dist., 71 S.D. 7, 9, 20 N.W.2d 516, 517 (1945), for this language:
If the teacher has exercised his right of appeal to the circuit court, as provided by the statute, and if it has been finally determined on the appeal that he was wrongfully dismissed, he may maintain an action in any court of competent jurisdiction for the recovery of any damages sustained by him as a result.
Notwithstanding the trial court’s recognition that there must be a strict compliance with SDCL 13-43-4, as specifically set forth in Conclusion of Law III of the lower court’s formal decision, the trial court independently decided to paint with an equity brush. The equity brush, with colors (theories) therebefore unseen, painted an award of damages. Conclusion of Law IV expresses:
Appellant having relied on the statements and indications of both the Superintendent and to some extent the president of the school board to his detriment which resulted in a number of expenses incurring to him, this Court in the exercise of its equitable powers will hold the Board responsible for the following damages of the Appellant:
Moving expenses to Onida — $234.20
Apartment expenses — 567.90
Teaching dues expenses — 200.00
Moving from Onida expenses — 236.08
Hearing expenses — 374.80
Total — 1612.98
(Emphasis supplied.) An award of damages is a radical departure from the settled law of this state and the intent of the legislature which established an appeal from school board decisions.
Though I recognize the doctrine of detrimental reliance, it cannot spring forth like spontaneous combustion in a school board appeal, as such an appeal by statute and decisions is most restrictive in nature. I would have it die by appellate collapse.
• Therefore, I dissent to the award of any damages in this proceeding; let William Minor come forward in an action at law for damages under such theory which he believes he can sustain in the proper arena, whereupon due proceedings in law may precipitate as in any action praying for consequential damage.