I am unable to agree with the majority opinion. On an analysis of section 682.23, Code of 1946, it seems there need be no contradiction in its terms, nor is it necessarily ambiguous. But even if ambiguous it should be resolved in a different manner than proposed by such opinion.
The section provides first that all proposed investment of trust funds by fiduciaries shall first be reported to the court or a judge for approval and be approved. The fund must then be invested in one or more of fourteen specified classes unless otherwise authorized or directed as provided in the section. An exception may be on account of a will, trust agreement, or other document which is a source of authority. It may be for some other reason relative to the estate or trust fund. There might be a number of reasons why the court should decide that the investment should not be made at all, or should not be made in some form of the approved securities. The character of the trust, the length of time it has to run, or the character of the proposed investment, even if it came within one of the approved classes, might require that the court otherwise authorize or direct. There might be a number of reasons why the investment should not even be made at all, but if made and the proposed *Page 1234 investment does not come within one of the accepted classes, the fiduciary would have no right to invest nor the court to order an investment, except in one of the fourteen specified classes fixed by statute.
So construed there need be no ambiguity or contradiction in the statute. We are conforming to one of the principal rules in the interpretation of statutes in giving effect to all its parts. Otherwise we are overlooking the established rule that if it is fairly possible a statute will not be construed so that part of it is to be rendered superfluous, and the further rule that effect is to be given to every provision. The majority opinion does not dispute these rules and it is unnecessary to cite authority therefor.
The majority opinion calls attention to section 668.9 of the 1946 Code in regard to the duties of a guardian. We cannot see that this statute in any way relaxes the strictness of the provision we are considering. Guardians must perform these various duties for their wards and loan their money as required by this statute. This is not an extension of their powers, but, so far as loaning money is concerned, those powers are limited by the rigid provisions of section 682.23.
No one could contend that the interpretation of one legislature of the acts of another is controlling, but, contrary to the suggestion in the majority opinion, it would seem to be plain that if there was a contradiction or ambiguity in the statute that some action would have been taken long ago to clarify what the majority opinion seems to think is not clear. In examining the history of the statute we should not entirely disregard the effect of legislative construction or failure to amend. Nor can there be any dispute that in seeking the intent of the legislature, it is our duty to interpret the statute itself.
I am persuaded that in seeking an interpretation or construction of a statute some aid may be gained by considering other statutes relating to the same subject matter. An examination of a somewhat similar provision, section 672.14, shows that the strictness of the statute we have under consideration is somewhat relaxed regarding the investment of certain veterans' funds in some securities about which there can be no question, but it will be noticed that a further portion of the statute does *Page 1235 not alter, in any way, the provisions of the general section, 682.23, for the reason that it requires that all other investments will be under the order of court in securities authorized by section 682.23, with provisions for notice. This limitation indicates that as to these funds the legislature still holds these fourteen types of securities to be in the class of safe investments. There is also the rule, frequently stated, that where in the statute there are general and specific provisions, the general provisions are controlled by the specific provisions.
All lawyers are fully aware that the construction of an existing statute is a judicial and not a legislative function, as stated in the majority opinion. From the wording of the statute under consideration there can be no doubt as to the general as well as the specific intent of the legislature to safeguard investments made for the benefit of those under disability, or for the beneficiaries of trusts. This general intent should be kept in mind. The intent of the statute, taken as a whole, is to limit the power of the guardian or trustee and the court to investments which have the legislative sanction, and such investments are specified. The legislature itself has provided such safeguard. To follow the rules laid down is far from being judicial legislation. By the majority opinion we are placing a burden upon the district court which I think the legislature never intended.
I believe that a fair interpretation of the statute, applying the well-known and established rules of construction, is that the intent of the legislature, from the passage of the original act through all its amendments, has been to restrict the investments of those under the protection of the court. We know the object of this and similar statutes, the language in which they are framed evidently so holds, and our interpretation of the statute, fully warranted by its language, should be to give effect to that intent. I would reverse.
MANTZ and MULRONEY, JJ., join in this dissent. *Page 1236