(dissenting) .
I dissent and would affirm the decision of the trial court.
First American Bank & Trust Company was organized as an annuity, safe deposit, surety and trust company pursuant to Chapter 6-05, North Dakota Century Code.
Chapter 6-05, on the other hand, provides for the organization, powers, management and regulation of annuity, safe deposit, surety, and trust ' companies which come within the definition of banking institutions but not banking associations. Both are corporations but differ widely in requirements of organization, qualification, powers, scope of activities, and stringency of authorization and regulation.
Nelson v. Dakota Bankers Trust Company, 132 N.W.2d 903, 909 (N.D.1965).
First American Bank & Trust Company is a special type of corporation intentionally surrounded with safeguards not provided for general banking corporations, and which were undoubtedly provided for the purpose of protecting the interests, not only of creditors, but of shareholders and all others interested in or affected by the business of such a corporation.
The State Examiner in this case is governed by the provisions of Chapter 6-05, N.D.C.C., relating to annuity, safe deposit, surety, and trust companies. Under § 6-05-28, N.D.C.C., the State Examiner shall make a full, true, complete and accurate examination and investigation of the affairs of each corporation doing business under this Chapter once in each six months.
From such examination of the business of any such corporation if it shall appear to the State Examiner that the deposit made by the corporation with the state treasurer is insufficient to insure the safety of its deposit, trust and contingent liabilities, he shall make an order requiring an increase of such deposit under § 6-05-27, N.D.C.C. The corporation is then re*101quired to make a deposit in an amount sufficient to comply with said order.
Further, under § 6-05-29, if from such examination it appears to the examiner that such corporation has committed a violation of law or is conducting its business in an unsafe or unauthorized manner or that the deposit made by it with the state treasurer is insufficient to protect the interest of all concerned, the examiner, by an order, shall direct the discontinuance of such illegal or unsafe practices and order it to conform to the requirements of the law or to make a further deposit with the state treasurer in an amount sufficient to insure the safety of its trust, deposit and contingent liabilities. Upon any such corporation refusing to comply with any such order or whenever it shall appear to the examiner that it is unsafe or inexpedient for any such corporation to continue to transact business he shall communicate the facts to the Attorney General, who thereupon shall institute such proceedings against any such corporation as the case requires.
In this case, the State Examiner has not issued any order requiring this corporation to make a further deposit with the state treasurer in an amount sufficient to insure the safety of its trust, deposit and contingent liabilities. I am of the opinion that the State Examiner is obligated under the provisions of this section to issue such order to the corporation involved directing a further deposit in an amount sufficient to insure the safety of the trust, deposit and contingent liabilities of this corporation if it appears from such examination that such deposit is necessary to insure the safety thereof.
Section 1-02-07, N.D.C.C., provides that whenever a general provision in the statute shall be in conflict with a special provision in the same or in another statute, the two shall be construed, if possible, so that effect may be given to both provisions; but if the conflict between the two provisions is irreconcilable the special provision shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later, and it shall be the manifest legislative intent that such general provision shall prevail.
The general rule on statutory construction, as given in 82 C.J.S. Statutes § 369 is that:
General and special statutes should be read together and harmonized, if possible; but, to the extent of any necessary repugnancy between them, the special statute will prevail over the general unless it appears that the legislature intended to make the general act controlling.
Section 6-07-04, N.D.C.C., upon which the majority relied, is a general statute relating to the dissolution, insolvency, suspension, and liquidation of any association or corporation organized under the provisions of this Title, Banks and Banking, which includes all forms and types of banks, state banks, savings banks, trust companies, building and loan associations, mutual investment corporations, mutual savings corporations, banking institutions, and other financial corporations, exclusive of The Bank of North Dakota, and all credit unions, organized and doing business under the laws of North Dakota and engaged wholly or in part in the receiving of deposits or the selling of their certificates or other evidences of indebtedness or obligations to the public, including the First American Bank & Trust Company organized under Chapter 6-05, N.D.C.C.
However, §§ 6-05-27 and 6-05-29 are special statutes pertaining to the duties of the State Examiner in relation to banking institutions organized under Chapter 6-05 which require the State Examiner to do certain things upon finding that the banking institution is not complying with the law or that the deposit made by it with the state treasurer is insufficient to protect the interests of all concerned. The directives as contained in §§ 6-05-27 and 6-05-29, N.D.C.C., are mandatory and must be complied with by the State Examiner.
*102KNUDSON, J., concurs in dissent of EMIL A. GIESE, District Judge.