dissenting.
Although I agree with much that is said by Chief Justice Erickstad and Justice Vande Walle, I do not agree with the conclusion. This court misleads litigants when it provides admittedly inadequate “band-aid” type remedies when major legislative surgery is required.
The scope of the judicial review of a noncontractual administrative determination made by a school board, which is available to a teacher claiming to be aggrieved by that determination, seems to be a dark mystery both in' North Dakota and elsewhere. It serves no good purpose to point fingers the teachers are hurting for sure, but so are the school boards and the judicial system. All have to admit to some fumbling. I read Dobervich v. Cent. Cass Pub. Sch. Dist. No. 17, 283 N.W.2d 187 (N.D.1979), as distinguishing breach of contract suits from nonrenewal suits, but it is evident that the majority of this court does not read it that way. Until there is some understanding at a slightly higher plane than has been heretofore displayed, there is no reason to expect that relief can be forthcoming.
It is my position that the courts cannot provide the remedy. To that extent I agree with the concurring opinion of Justice Vande Walle. Nevertheless, to remand for a consideration on the merits is not warranted. The issue goes beyond the abolishment of the distinction between law and equity, Rules 1, 2 and 3, NDRCivP, and liberal interpretation of pleadings. All of the facts necessary are in the record-we can make the decision as well as the trial court.
*428Time constraints and judicial workload prevent an exhaustive research analysis of the matter, but it is basic to jurisprudence in general and the laws of this state that suits against the state, or any of its arms, must be by consent of the legislative assembly. See § 22, North Dakota Constitution; Wirtz v. Nestos, 51 N.D. 603, 200 N.W. 524 (1924); State v. Lowe, 54 N.D. 637, 210 N.W. 501 (1926); Watland v. North Dakota Workmen’s Comp. Bureau, 58 N.D. 303, 225 N.W. 812 (1929); 81A C.J.S. States § 300. Further insight into the problem can be garnered from Davis, Administrative Law Treatise, 2d Ed. Supp. (Unreviewable Administrative Actions).
“... in the absence of a legislative expression indicating a purpose to subject administrative or executive judgment to judicial review or control, the officers in question were not subject to suit.” Watland v. North Dakota Workmen’s Comp. Bureau, 225 N.W. at 814.
“Express authority given claimants to prosecute appeals to the courts, in certain instances where claims have been denied, is not a consent to suit.” Watland v. North Dakota Workmen’s Comp. Bureau, Syllabus 3, 225 N.W. at 812.
Actions “respecting the title to property, or arising upon contract” are authorized by § 32-12-02, NDCC. This applies to the arms of the state, Little v. Burleigh County, 82 N.W.2d 603 (N.D.1957), and to implied as well as express contracts, Stark County v. State, 160 N.W.2d 101 (N.D.1968).
“Any power to create a liability against the State must be derived from specific statutes. Courts have no inherent power to create such liability.” Stark County v. State, Syllabus 1, 160 N.W.2d at 102.
The interest of a teacher under §§ 15-47-38 and 15-47-27, NDCC, often referred to as “a continuing contract,” is not a contract right, either express or implied. See discussion in Dobervich, supra, and Bottineau Public Sch. Dist. # 1 v. Currie, 259 N.W.2d 650, 654 (N.D.1977). Samuels has not argued that § 32-12-02, NDCC, authorizes this suit. If nonrenewal were a breach-of-contract matter, under Henley v. Fingal Public School District # 54, 219 N.W.2d 106 (N.D.1974), Samuels would be entitled, apparently, to specific performance and he might also be entitled to an injunction pursuant to § 32-05-05(5), and Chapter 32-06, NDCC. Another remedy available might be declaratory judgment, Chapter 32-23, NDCC.
If there is a claim of tort or negligence, apparently a damage suit remedy is available against subdivisions of the State of North Dakota pursuant to Kitto v. Minot Park District, 224 N.W.2d 795 (N.D.1974). Samuels’ complaint fails to make a claim within that authority.
The Legislature, in §§ 32-33-01, 32-34-01, and 32 -35-01, NDCC, authorizes writs of certiorari, mandamus and prohibition against arms of the state. Samuels seeks none of those remedies in his complaint. If he had, the trial court would know that arbitrary action must be alleged and proved before the school board’s decision could be set aside. And this court would know its scope of review.
Even though “no one should suffer by the act of another,” § 31-11-05(11), NDCC, and “for every wrong there is a remedy,” § 31 -11 -05(14), NDCC, the general rule is that:
“It is well settled that for every right or wrong there is a legal remedy, except in the case of the rights of an individual against a state . . ..” 1 C.J.S. Actions § 4a.
The record before us contains evidence that Samuels was not punctual in attendance and that this was the basis of his nonrenewal. There is also evidence that Samuels’ morals did not meet the standards of the community. Without substituting its judgment for that of the school board, but giving some “deference” to the school board, the trial court will find it difficult to conclude that either, or both, of the above grounds fail, as a matter of law, to be sufficient to support the nonrenewal. I presume that the definition of good faith in § 1-01-21, NDCC, would apply if Samuels contends that good faith was lacking. Teachers are required by state law to teach *429temperance and morals, §§ 15-38-05 and 15-38-10, NDCC. A teacher who is tardy on any regular basis should not expect renewal, even after reading Baker v. Minot Public School Dist. No. 1, 253 N.W.2d 444 (N.D.1977).
In my opinion the trial court was entirely correct in pointing out that the only claim for damage available is incidental to a writ of mandamus as indicated in § 32-34-06, NDCC, and as pointed out in Dobervich, supra.
The judgment should be affirmed.