We dissent.
This is an action in mandamus by eight tenure teachers of School District No. 1, Silver Bow County, Montana, consisting of the Butte school system, wherein they seek to compel the trustees of said School District by mandamus to grant them salary increases contained in a written contract entered into between said School District and other school teachers of said District. In applying for this extraordinary remedy and attorneys’ fees, the burden is on these eight tenure teachers to clearly show that the district court and this court had and has jurisdic*93tion. To invest the court with jurisdiction it was necessary that these teachers show the existence of two prerequisites, first, that they had a clear legal right to have a particular act or duty performed by the said defendant Board of Trustees of School District No. 1 and, second, that “there is not a plain, speedy, and adequate remedy in the ordinary course of the law. ’ ’ R.C.M. 1947, sec. 93-9103. Section 93-9102, R.C.M. 1947, provides for the issuance of a writ of mandate only to1 compel a board to perform an act which the law specifically enjoins as a duty upon such board.
“It has long been held that the applicant must establish a clear legal right to the writ in his application therefor, and a violation of duty by the person sought to be coerced. The writ is available only where there is no speedy or adequate remedy in the ordinary course of law. State ex rel. Goza v. District Court, 125 Mont. 296, 234 Pac. (2d) 463.” See Stewart v. State, 135 Mont. 323, 340 Pac. (2d) 151, 153; State ex rel. Kennedy v. District Court, 121 Mont. 320, 194 Pac. (2d) 256, 2 A.L.R. (2d) 1050; Raleigh v. First Judicial District Court, 24 Mont. 306, 61 Pac. 991; State ex rel. Peel v. District Court, 59 Mont. 505, 197 Pac. 741; State ex rel. Duggan v. District Court, 65 Mont. 197, 210 Pac. 1062; and see Benolken v. Miracle, 129 Mont. 495, 289 Pac. (2d) 953; State ex rel. Peterson v. Peck, 91 Mont. 5, 4 Pac. (2d) 1086. This is the only real issue in this appeal.
Absence of either prerequisite bars the relator’s action in mandate. "Whether each of the prerequisites exist in this case is the initial issue to be determined on this appeal.
The above majority opinion cites the ease of Norwalk Teachers’ Ass’n v. Board of Education, 138 Conn. 269, 83 A. (2d) 482, 31 A.L.R. (2d) 1133, which is wholly inapplicable to any issue presented by the pleadings and record in the instant case. Next, the majority quotes President Calvin Coolidge’s remarks on the Boston police strike and President Franklin Delano Roosevelt’s letter of August 16, 1937, expressing his personal views to the president of the Federation of Federal Employees, *94all of which is equally foreign to any issue that was before the district court or that is now before this court on this appeal. The erection of such “strawman bugaboo” could only result in prejudice to the appellants now before this court. At no time did this ease involve any question of either a strike, or of any threat to strike, and in justice to the litigants and its dignity this court should restrain itself from injecting any such foreign prejudicial matter in its determination of this appeal.
Neither are we concerned with the N.L.R.B., whose lack of power in the case incidentally is not for the reason stated in the majority opinion. See Plumbers, Steamfitters, Refrigeration, Petroleum Fitters, and Apprentices of Local 298, A. F. of L., v. County of Door, 359 U. S. 354, 79 S. Ct. 844, 3 L. Ed. (2d) 872.
In order to determine whether or not these eight petitioning tenure teachers were entitled to some clear legal right the appellant trustees of School District No. 1 had wrongfully denied them, it is necessary to examine the status of such tenure teachers under the Montana statutes as of the time such tenure teachers claim their cause of action arose.
School teachers, of necessity and under the applicable Montana statutes, are re-elected annually in the manner prescribed by law. The orderly conduct of school business demands that the school authorities observe the requirements of the statutes in this connection. Express statutes have been enacted setting out the powers and duties of school trustees in respect to employment of the teachers.
R.C.M. 1947, sec. 75-1632, provides:
“Duties of trustees. Every school board unless otherwise specifically provided by law shall have power and it shall be its duty: * * *
“2. To employ or discharge teachers, mechanics or laborers, and to fix and order paid their wages; provided, that no teachers shall be employed except under resolution agreed to by a majority of the board of trustees at a special or regular meeting; nor unless such teacher be the holder of a legal teacher’s certificate in full force and effect. All contracts of employment of *95teachers, authorized by proper resolution of a board of trustees, shall be in writing* and executed in duplicate by the chairman and clerk of the board, for the district and by the teacher. ’ ’
R.C.M. 1947, see. 75-4231, provides:
“General powers and duties of boards of trustees. The board of trustees of every county high school and of every school district maintaining a district high school shall have the power, and it shall be its duty: * * *
“6. To fix the salaries and compensation to be paid to the principal or district superintendent and assistants and teachers employed. ’ ’
The trustees are by the statutes informed of their powers and duties, but the terms of the contracts of employment are not set out in the statutes. These details generally are left to the discretion of the school trustees.
However, to that certain class of teachers, known as tenure teachers, and all of the school teachers here involved are within this class, the discretion of the Board of School Trustees is limited and governed by express statute.
R.C.M. 1947, see. 75-2401, provides:
“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, but in this written notice, the board of trustees, if requested by the teacher or principal, must declare clearly and explicitly the specific reason or reasons for the failure of re-employment of such teacher. The teacher or principal, if he so desires, shall be granted a hearing and reconsideration of such dismissal, before the board of trustees of that school district. The request for a hearing and reconsideration must be made in writing and submitted to the board of school trustees within ten (10) days after receipt of notice of dismissal. The board of *96trustees must hold a hearing and reconsider its action within ten (10) days after receipt of such request for a hearing and reconsideration. Provided that nothing1 in this act shall be construed to prevent the re-election of such teacher or principal by such board at an earlier date, and also provided that in case of re-election of such teacher or principal, he shall notify the board of trustees in writing within twenty days after the notice of such re-election of his acceptance of the position tendered him for another year and failure to so notify the board of trustees shall be reg'arded as conclusive evidence of his nonacceptance of the position.”
On April 1, 1956, the eight petitioning tenure school teachers were automatically re-elected as school teachers at precisely the same salary and contract provisions for which they were elected for and during the preceding school year. The Montana statute, section 75-2401, supra, so requires. These provisions of the law of this state became and were: a part of the contract of employment, whether embodied in a written contract or not, and the terms and requirements of section 75-2401, supra, became, were and are binding upon both the board of trustees of School District No. 1, and also are binding upon each of the eight petitioning teachers now before this court. See McBride v. School District No. 2, 88 Mont. 110, 115, 290 Pac. 252, and authorities cited therein.
Because the appellant Board of Trustees of School District No. 1, of Silver Bow County, had not taken any affirmative action by a majority vote of its members on or before April 1, 1956, by giving notice to each petitioning teacher that his or her services would not be required for the ensuing year, each of the eight petitioning teachers was, by express statute, automatically reelected for the ensuing year at the same salary paid during the preceding school year.
Under the undisputed facts presented by the record herein, and the express provisions of the above-quoted Montana statutes, the appellant Board of Trustees allowed, granted and extended to the petitioning tenure teachers, all and everything that the *97law required or demanded. For these most cogent reasons the appellant Board of Trustees may not be coerced by mandamus and compelled to grant or allow to any teacher any salary other than that expressly provided by statute for a tenure teacher who has for any reason declined to enter into a new contract providing for a larger salary than that received during the preceding school year.
The appellant Board of Trustees did not and has not denied any one of the eight petitioning tenure teachers any right accorded any of them by the statutes of Montana.
These eight petitioning tenure teachers have not shown in this record, nor can anyone of them show she has a clear legal right, either collectively nor as an individual to have any particular or specific act or duty to be performed in her behalf by the appellant Board of Trustees. Clearly the complaint of the petitioning tenure teachers herein wholly fails to show that petitioners are entitled to any relief by mandamus or otherwise in this action. A very dangerous precedent is set by the holding of the majority opinion, for Montana’s boards of school trustees. We would reverse the judgment of the district court and remand the cause with order to dismiss the suit with prejudice.
Addendum to Dissent
Subsequent to the submission of our dissenting opinion herein, District Judge E. E. Fenton prepared a separate opinion concurring with the majority, wherein an attempt is made to answer the legal points raised in our original dissent.
Prior to the enactment, in the year 1913, of a complete school Code, Chapter 76, Laws of 1913, there were no tenure teachers in the public schools of Montana.
Since that time, however, there has been established a statutory probationary period for public school teachers at the expiration of which period the probationary teacher acquires tenure status and becomes known as a tenure teacher.
Probationary teachers. Under a specific statute of this state, in effect during the time of this controversy, a probationary *98teacher was one who had not been elected for a third consecutive year by the board of school trustees.
Tenure teachers. After serving the statutory probationary period of three years, then by operation of law, such probationary teacher, upon her subsequent election, becomes a tenure teacher who “shall be deemed re-elected from year to year thereafter” unless the board of trustees gives to such teacher timely notice, i. e., notice given on or before the first day of April that such teacher’s services will not be required for the ensuing year. B.C.M. 1947, sec. 75-2401.
Since the enactment of section 75-2401, supra, its provisions have become a part of every tenure teacher’s contract of employment. This statute gives every tenure teacher special protection in her employment with the board of school trustees. It sets up the tenure teacher’s clear, legal rights in addition to the duties and liabilities of the school district toward its teachers. It specifies the precise day that the rights of these tenure teachers mature and become fixed by law for the ensuing school year. That day is fixed by statute as April 1st of each succeeding year.
Unless some positive action is taken, on or before the first day of April, by the board of trustees of the school district, each and every tenure- school teacher within the school district is deemed re-elected by statute, section 75-2401; supra, for the ensuing school year.
At no time before April 1st, did the Butte School District take any action whatever under section 75-2401, supra. At no time did the Butte School District give any teacher of the district any notice. Hence, as a simple matter of statutory construction each and every tenure teacher in the Butte School District was “deemed re-elected” for the ensuing school year.
Each and all of the eight respondent teachers appearing before this court in this proceeding were and are tenure teachers. Where something' is by statute “deemed” to have been done, it is to be treated as having been done. See State ex rel. Sinko v. District Court, 64 Mont. 181, 208 Pac. 952, and cases there cited. *99Webster’s New International Dictionary, 2d Ed., defines “deemed” as “to proclaim, announce.”
Having been proclaimed and announced as re-elected on the first day of April 1956, by operation of law, section 75-2401, supra, these eight petitioning tenure teachers were entitled only to that which the statute allowed them. Should the trustees of the school district have attempted to give the eight petitioning tenure teachers any less than was their due under the statute, only then and not until then would such tenure teachers be entitled to maintain an action in mandamus against the board.
On April 1, 1956, the eight respondent tenure teachers’ rights were matured. Following that date the school board offered to give such eight tenure teachers precisely what the law provided for them. They were thus1 accorded and given their rights under the law and they were and are wholly unable to either plead or prove “a clear legal right” in themselves “to the relief prayed for, and a violation of duty upon the part of the person or officer sought to be coerced. ’ ’ See State ex rel. Grant v. Eaton, 114 Mont. 199, 204, 133 Pac. (2d) 588, 590.
Each of the eight complaining tenure school teachers, by operation of law, was given a contract for her employment during the entire school year. Each accepted such contract and each taught and performed under such contract for which performance each was fully and regularly paid each month during such school year. Such statutory contract was and has been fully executed by each party thereto. Such duly executed contract gave none of the eight petitioning teachers any right, justification nor excuse under the law to maintain this action for a writ of mandate against the Butte School District and its board of trustees, nor to compel the school and its trustees to pay additional sums and amounts under terms of a proposed contract of employment which was offered each of the petitioning teachers, but which each rejected and by which each refused to be bound.
By affirming the action of the trial court the majority opinion herein requires the Butte School District No. 1, and its board *100of school trustees to pay to the eight petitioning tenure teachers and their attorneys, in addition to the salaries already paid them, around $30,000 under a proposed contract of employment, which such teachers rejected and to which they refused to become a party.
Under the law and under the executed contract which the law gave them as tenure teachers, the eight complaining plaintiffs were without right to maintain this action and proceeding or to prevail herein. The trial court’s judgment should be reversed.