dissenting:
I would grant the petition for writ of prohibition on the ground that the petitioners/defendants (“petitioners”) were not served with the original complaint within the time required by statute. The trial court consequently did not gain personal jurisdiction over the petitioners. I also note that the trial court’s interpretation and application of 1 CMC § 6424 was clearly erroneous.
*101Service of Complaint
One CMC § 6423(d) requires that “within five days from the receipt of the verified complaint, the Board [of Elections] shall cause to be delivered to the defendant a copy of the complaint filed by the contestant.” (Emphasis added). In this case, the verified complaint was not delivered to any of the defendants within five days from the Board’s receipt of the complaint. The Supreme Court of Minnesota stated in a case similar to this one that “in the absence of the service of such notice within said time ... the court does not acquire any jurisdiction.” Franson v. Carlson, 137 N.W.2d 835, 840 (Minn. 1965) (footnote omitted). The issue in Franson, as here, was “[whether] the district court acquire[d] jurisdiction of the contest under the service as made.” Id. at 836.
The Superior Court correctly pointed out that election contest rights are purely statutory. The legislature may take the rights away or change them. Election statutes, furthermore, are to be strictly construed and enforced. As the Franson court stated: ‘“Compliance with such [a statutorily prescribed] proceeding is a prerequisite to the acquisition of jurisdiction. . . . [I]f the appeal is not taken in the maimer and within the time required by the statute, the court acquires no jurisdiction.’” Id. at 837 (quoting Odegard v. Lemire, 119 N.W. 1057, 1058 (Minn. 1909) (emphasis omitted).
With respect to petitioners Jovita and Abraham, it is clear that there was no service of the complaint within the required five days. However, with respect to petitioner Jose Inos, it appears that if the days were counted pursuant to Com. R. Civ. P. 6(a), service on him would fall within the five-day period.
“[W]hen the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.” Id. Since a Saturday and Sunday fall within the five days that followed the Board’s receipt of the complaint, those two days would be excluded and the time for delivery of the complaint to Mr. Inos would increase to seven calendar days. Com. R. Civ. P. 6(a) should not, however, govern the computation of days. Rather, the computation of days should be governed strictly by 1 CMC § 6423(d).
“An election contest is a special proceeding and, while tried as a civil action, is not governed by the Rules of Civil Procedure where they are inconsistent with the statutes pertaining to the procedure itself.” Franson, 137 N.W.2d at 839. Com. R. Civ. P. 6(a) is inconsistent with the language and purpose of 1 CMC § 6423(d). Com. R. Civ. P. 6(a) allows parties before the court to skip intervening weekends and legal holidays. Application of the rule to election contests would defeat the election contest statute’s shortened time periods. The purpose of these reduced periods of time is to expedite election contests and dispose of them as soon as possible. It follows that when the legislature specifies that the Board must serve the defendants within five days, it means the shortest possible five days, or five consecutive days.5 Because of the inconsistency between Com. R. Civ. P. 6(a) and 1 CMC § 6423(d), Com. R. Civ. P. 6(a) does not apply to actions brought pursuant to the election contest statute.
This strict application of our election statute may appear harsh or even unfair. For instance, it may seem unfair that the Board’s failure to act penalizes the contestants. However, the legislature alone prescribes election contest proceedings. If the result of strict enforcement of the statute is undesirable, the legislature, not the court, may change the law. Cf. In re Seman, 3 N.M.I. 57, 75 (1992) (“The judiciary may not ‘rewrite’ [3 CMC] § 2513 to make it conform to constitutional guarantees. . .
. [o]nly the legislature may do so”) (footnote omitted); King v. Board of Elections, 2 N.M.I. 398, 406 (1991) (“We will not act as a super legislature and strike down a statute or regulation merely because it could have been better written”).
Interpretation of 1 CMC § 6424
One CMC § 6424 provides: “The court shall thereupon set a date for the election contest hearing not less than 15 days nor more than 20 days from the date of the filing of the complaint.” The twenty-day limitation in this case expired on February 2, 1994. The trial court, however, in its January 29 order setting a hearing, “construed the statute as requiring it to fix the date for the hearing within the [twenty]-day period, but not to hold the hearing itself during that period.” Based on that construction, the court set the election contest hearing for February 21, 1994.
In light of the overall intent of the election contest statute to expedite such proceedings, it makes sense that the hearing should be held not less than fifteen days nor more than twenty days from the filing of a complaint. There is no reason to require the court to wait for fifteen days simply to set the hearing. Likewise, it would be contrary to the purpose of the statute to require the court to set the hearing within twenty days, but not to hold the hearing within any particular period of time. That would *102defeat the overall puipose of providing for expedited proceedings.
The trial court’s misinterpretation of 1 CMC § 6424 caused it to violate the statute in question by setting the election contest hearing far beyond the twenty-day limitation.6 This violation could be held to have divested the court of any jurisdiction it had acquired.7 However, since the trial court never acquired personal jurisdiction over the petitioners, it is unnecessary to determine what effect the violation of 1 CMC § 6424 had on the court’s jurisdiction.
Guidelines for Issuing a Writ
In Commonwealth v. Superior Ct., 1 N.M.I. 287 (1990), we set forth the guidelines for determining whether to grant a writ of prohibition. They are set out in the majority’s opinion.
In applying those guidelines, it appears that four out of the five apply to this case, and the scale tips heavily in favor of granting the writ.
First, the petitioners have no other adequate means, such as a direct appeal, to attain the relief desired, because the election statutes prohibit any appeal of the trial court’s decision:
After hearing the evidence and within three days after the submission thereof, the court shall issue its findings of fact and conclusions of law, and immediately thereafter announce judgment in the case, either confirming, or reversing the result of the election. The judgment of the court shall be final and unappealable.
1 CMC § 6425(c) (emphasis added).
Second, since no appeal may be taken to the Supreme Court from the decision of the trial court, the petitioners will be damaged or prejudiced in a way not correctable on appeal.
Third, as to the trial court’s interpretation of 1 CMC § 6424, and the setting of the hearing on the election contest beyond twenty days after the filing of the complaint, the trial court’s order is clearly erroneous.
Fourth, this case raises new and important problems and issues of law of first impression. One issue of first impression here is whether the trial court had jurisdiction even though the defendants were not legally served with the complaint. The trial court’s holding on this question is erroneous.
Based on the above analysis, the petition for writ of prohibition should be granted.
Cf. Anonymous Banks One through Three v. FDIC, 645 F. Supp. 706 (D. Mont. 1986) (holding that application of Fed. R. Civ. P. 6(a) rather than the statutorily-prescribed ten-day period of limitation for challenging temporary cease and desist orders would be contrary to congressional intent).
The court could have, and should have, set both the motion to dismiss and the election contest hearing on January 31, 1994, which would have been within the fifteen to twenty-day period.
See Perloff v. Edington, 302 So. 2d 92 (Ala. 1974); McCall v. Board of Educ., 175 N.E.2d 351 (Ohio 1959).