(concurring specially).
I concur in the result. However, I think the majority erred in considering this special proceeding in mandamus as an action in the nature of quo warranto. An action in the nature of quo warranto names as defendant the person charged with exercising the office without lawful right. 44 Am.Jur. Quo Warranto, Section 79. It is also made clear by our statutes that such action shall be brought against the claimed usurper. Sections 32-13-01, 32-13-07, 32-13-08 and 32-13-11, N.D.C.C. Although Mrnak is named in the title of the proceeding for mandamus, he is named only in his official capacity as a member of the school and canvassing boards of Twin Butte Public School District No. 1. *648He was an incumbent seeking re-election. He was proceeded against in his official capacity and not as an individual, which is made clear not only by the title of the proceeding but also in the order of the court directing the issuance of the alternative writ of mandamus. It states:
“It is further Ordered that service by copy of the Petition, the Writ and a copy of this Order on the five members of the school and canvassing boards set out in the caption shall constitute service on the boards in their official capacity * * * ”
It is my belief that an action in the nature of quo warranto is an inadequate remedy in this case. Although Stearns may be successful in an action in the nature of quo warranto to oust Mrnak from office, it would not necessarily follow that Stearns would be entitled to the office because the board had not declared that he was elected nor had he, in his possession, a certificate of election.
Further, it is my belief that it is not necessary to construe this proceeding as an action in the nature of quo warranto in order to reach the legal issue on the question of the eligibility of Stearns as a candidate for the office, or to hold the office.
Section 15^-7-06, N.D.C.C., governs school board elections. It provides, in part:
“An election in a public school district, except as otherwise provided in this title, shall be conducted and the votes shall be canvassed in the manner provided by the laws of this state for the election of county officers.”
The statutes pertaining to canvassing in an election of county officers do not empower the board of canvassers to exercise discretion in determining who are qualified as candidates for an office. Its duties in this respect are purely ministerial.
Section 15^-7-06, N.D.C.C., also provides :
“The school board shall canvass all election returns and shall declare the result of any election within three days thereafter, and the result of the election shall be entered upon the records of the board. The person receiving the highest number of votes for each office in the district shall be declared elected.”
In this instance the board of canvassers found that Stearns had the largest number of votes. However, the board did not declare Stearns elected to the office. Instead, the board declared Mrnak elected.
It is the contention of Stearns in this proceeding that the board did not carry out its duties as required by law. The board contends that it applied Section 15-28-02, N.D.C.C., which requires that at least two members of the school board shall be residents upon farms. Stearns is a resident of the city of Bowman and because there was just one holdover member on the board who resided on a farm, the board determined that Stearns was not eligible to hold the office. It certified and declared that the incumbent Mrnak, who had received the lowest number of votes but who lived on a farm, was elected to the office.
The trial court found that Section 15-28-02, N.D.C.C., is not applicable to Twin Butte Public School District No. 1 and, with this conclusion, the majority agreed. I also agree with this conclusion. Therefore, as a matter of law, the board erred in making its determination.
In further response to the claim of Stearns, the board also argued that it completed its duties as a school and canvassing-board when it canvassed the votes and declared Mrnak elected. Generally, a board of canvassers which has fully performed its duties and proclaimed the result of the election and has adjourned must be considered as having performed its duty and the board is then deemed functus *649officio so that the persons who composed it do not have any power or authority voluntarily to reassemble and recanvass the returns. 26 Am.Jur.2d Elections, Section 303. That section also states:
“However, a canvassing board cannot evade its duties by adjourning without taking the action required by law, and as a general rule, mandamus lies to compel its members to reassemble and perform their duty.”
For the foregoing reasons, the. legal question has arisen in the mandamus proceeding without the necessity of considering it as an action in quo waranto. The burden is upon Stearns to show his right to the certificate, and if he is ineligible to hold the office the writ should not be granted.
“The duty of declaring the result of an election is ministerial, and its performance may be enforced by mandamus. Thus, where it is admitted that the relator was duly elected to the office in question and the respondents on whom the duty of issuing a certificate of election is imposed improperly and illegally withhold their certificate, and where there is no other legal remedy whereby the relator can obtain adequate relief, he is entitled to a writ of mandamus to compel the issuance of the certificate, even though other proceedings may be necessary to enable the relator to secure the possession and emoluments of the office after the certificate is issued. However, to entitle a relator to the writ, his right to the certificate must he clearly shown, so if he is ineligible to hold office, a writ will not he granted though the duty of the canvassing hoard to issue a certificate of election is ministerial.” 26 Am.Jur.2d Elections, Section 307. [Emphasis added.]
Stearns sustained the burden to show his right to the certificate when it was established that he had received the highest number of votes, and when he produced evidence establishing that Section 15-28-02, N.D.C.C., was not applicable to this school district.
For the reasons aforesaid, it is my opinion that it was unnecessary and also improper for the majority to apply Rule 8(a), N.D.R.Civ.P., to reach the issue in this proceeding.