specially concurring:
I agree with the rule stated in the dissenting opinion that the applicant for a writ of mandate “must establish a clear *90legal right to the writ, * * * and a violation of duty by the person sought to be coerced.”
That such a right and duty has been established by the plaintiffs seems to me to be apparent from the pleadings upon which the judgment herein was given.
It is alleged in Paragraph X of the petition and complaint that the Board of Trustees tendered a contract to each of the plaintiffs wherein the salary to be paid was fixed at $5,100 each for four of the plaintiffs, and $4,900 for each of the other four. This allegation is admitted by the defendant School Board. Thus it appears that the defendant Board did perform its legal duty (R.C.M. 1947, secs. 75-1632, and 75-4231) to employ teachers and fix their salaries.
It is further alleged in the petition and complaint, and admitted by the answer of the School Board, that all of the plaintiffs signed and returned the above-mentioned contracts “deleting therefrom a provision which seemed to require that these plaintiffs become members of the Butte Teachers’ Union.” Further it is alleged in the petition and complaint, and admitted by the School Board’s answer,
“That subsequently, each of the above-named plaintiffs was advised by letters from the Superintendent of Schools of said School District No. 1, of Silver Bow County, at the direction of the said Board of Trustees that the salaries of each of the above-named plaintiffs would not be at the rates stated in the contracts tendered as above stated but that the salaries for the school year 1956-1957 for the said plaintiffs would be as follows, to-wit: [Here follows a schedule showing a salary rate of $4,800 for each of the plaintiffs who had previously been elected at salaries of $5,100, and a salary rate of $4,600 for each of the plaintiffs who had previously been elected at salaries of $4,800.]
“That the letter from the Superintendent of Schools was accompanied by a copy of a resolution adopted by said Board on the 7th day of May, 1956, which resolution, in part, provides as follows: ‘that said teachers (referring to all of the plaintiffs herein), and each of them, are hereby rehired by the Board at *91the same salary and upon the same conditions each of them received for the school year 1955-1956 until such time as any of them execute the same contract as was heretofore tendered to her and any such teacher shall then receive the salary originally offered her from the date of the signing of such contract’.” Emphasis supplied.
Thus it appears that, after the Board had acted, pursuant to statute, by employing the plaintiffs and fixing their salaries, it then undertook to retract the offered contracts because the plaintiffs deleted therefrom a provision requiring membership in the Butte Teachers’ Union, which provision, as shown by the majority opinion herein, is invalid.
R.C.M. 1947, see. 75-2401, contains the following provision, “After the election of any teacher or principal for the third consecutive year in any school district in the state, such teacher or principal so elected shall be deemed re-elected from year to year thereafter at the same salary unless the board of trustees shall by majority vote of its members on or before the first day of April give notice in writing to said teacher or principal that he has been re-elected or that his services will not be required for the ensuing year. ’ ’ Emphasis supplied.
The notice that the plaintiffs would be deemed re-elected, purportedly given under the statute last quoted, was not given until after May 7th. There can therefore be no valid contention that the School Board acted pursuant to this tenure statute which requires a notice on or before April 1st. See Day v. School District No. 21, 98 Mont. 207, 216, 38 Pac. (2d) 595, holding that action taken by a School Board subsequent to the date fixed by the tenure statute was untimely and of no effect.
The election of the plaintiffs was valid in all respects save as to the condition attached thereto requiring the plaintiffs to become members of the union. That action of the Board was not subject to retraction after all of the valid provisions of the offered contract had been accepted by the plaintiffs and only the invalid provision had been deleted. The right of the plaintiffs to the writ of mandate is established by the action of the School *92Board in employing them and fixing their salaries pursuant to R.C.M. 1947, secs. 75-1632, and 75-4231. The Board thereby performed its discretionary duty to employ teachers and fix their salaries. The ministerial duty to execute the contracts of employment and order payment of the salaries therein provided for is fixed by R.C.M. 1947, sec. 75-1632, subd. 2, and the Board cannot escape that duty by a belated and untimely attempt to substitute employment under the tenure statute.
School districts are instrumentalities of the state government. State ex rel. Fisher v. School District No. 1, 97 Mont. 358, 365, 34 Pac. (2d) 522. The board of trustees of such a district does not have the same freedom of action as a private employer with respect to the contracts of employment made by it. With respect to the employment of teachers the board of school trustees has such powers as are given to it by law and as are necessarily implied from those granted, and no others. Abshire v. School District No. 1, 124 Mont. 244, 220 Pac. (2d) 1058. As pointed out in the opinion of Mr. Justice Angstman, school boards have not been given power by the legislature to require that teachers must become members of a designated labor union, nor have they been given power in the fixing of teachers’ salaries to discriminate against those who do not comply with the board’s requirement of union membership.
I concur in that opinion.