ON PETITION FOR REHEARING
KELSCH, District Judge.The respondent has filed an original and supplemental petition for a hearing, which contains a great number of specifications and assignments of error. We have carefully analyzed and considered all of them. We find that some are devoid of merit in fact and law; that many have been fully argued, considered and decided; and that some are new, in which the respondent has challenged the legality of our decision insofar as it sustains the validity of State Examiner’s Order No. 1, and in which it claims that our decision is unsound, inconsistent and contrary to law.
We deem it advisable to accept and answer this challenge lest it be claimed and believed that our silence constitutes an indisputable admission that our decision is, indeed, as claimed, unsound, unreasonable and inconsistent with the true legislative intent.
The attack upon the validity of our decision is based upon seven grounds, which we shall state and answer separately.
First. Respondent claims that we erred in our interpretation of § 6-07-04 by concluding that the State Examiner while acting in an individual capacity had the authority
(1) To make an administrative finding of insolvency; and
(2) To issue an ex parte order appointing a temporary receiver to seize the property of the respondent bank.
It is argued, in effect, that this interpretation is unsound and inconsistent with our determination
(1)That under Youmans [Youmans v. Hanna, 35 N.D. 479, 160 N.W. 705 (1916)] the State Examiner had no power to act in an individual capacity but could only act as a member and chairman of the State Banking Board;
(2) That only the State Banking Board had the power to find and determine, after reasonable notice and a fair hearing, that the respondent bank was in fact insolvent;
(3) That having held that only the State Banking Board had the power to determine that a banking institution was in fact insolvent upon reasonable notice and a fair hearing, it could not be reasonably and consistently held, as we did, that the State Examiner could do so without such notice and hearing which the State Banking Board could not do; and
(4) That we have no statutory provision authorizing the State Examiner to appoint a temporary receiver to take possession of, control, and manage the banking business of the respondent, as we have held he did.
These contentions clearly show that the respondent has misinterpreted and misapplied our opinion. To clarify this misunderstanding and the confusion complained of it is sufficient to state that in our opinion we set out the pertinent provisions of our statutes relating
(1) to the powers and duties of the State Banking Board;
(2) to the powers and duties of the State Examiner; and
(3) to the applicable provisions of the Administrative Agencies Practice Act.
These statutory provisions clearly authorize the State Examiner to act in a dual or twofold capacity, first as a member and chairman of the State Banking Board while acting as an administrative agency, and second, as an administrative officer acting in an individual capacity as such official.
Stated differently, when the matter in issue in any proceeding comes within the exclusive jurisdiction of the State Banking Board that then he can only act as a member and chairman thereof and as *103such he can only participate in its hearings, deliberations, findings and decisions. In such a proceeding he has no authority to act in an individual capacity independently of the State Banking Board.
On the contrary, when the subject matter involves the exercise of any power expressly conferred or the performance of any duty expressly imposed upon him as such official that then he has both the right and the duty to act in an individual capacity as such official without the presence of or the participation in or by the State Banking Board when acting as an administrative agency.
That pursuant to and consistent with this basic difference between the action of an administrative agency and that of the State Examiner when acting in an individual capacity, we hold that the State Examiner has the authority to exercise the powers and to perform the duties imposed upon him by § 6-07-04 when acting in an individual capacity separately from and independently of the State Banking Board.
Further, the respondent strenuously insists that we erred in sustaining the right of the State Examiner to appoint a temporary receiver to seize the property of the respondent because there is no provision in any of our statutes authorizing him so to do.
It is true that we have no statutory provisions which expressly authorize the State Examiner to appoint a temporary receiver and that it might have been more appropriate to have held that he only had the power to act as a conservator to preserve the status quo or to appoint one of his deputies to act in such capacity. But there is ample judicial authority to sustain the right of the State Examiner to act as a conservator or to appoint one of his deputies to do so; that the functions of a conservator and those of a temporary receiver are substantially the same, namely, to obtain temporary possession, control and management of the banking institution involved and to conserve and preserve the status quo pending regular proceedings before the proper administrative agency. Obviously, the difference here is only one of terminology and not of substantive powers and functions, and as such it does not render our decision erroneous. Gunsch v. Gunsch, 69 N.W.2d 739 (N.D.1954); Hill v. Bank of San Pedro, 41 Cal.App.2d 595, 107 P.2d 399 (1940); Westveer v. Ter-Keurst, 276 Mich. 277, 267 N.W. 834 (1936); 10 Am.Jur.2d, Banks and Banking, § 679, p. 733.
Second. The respondent has assailed the validity of our decision on the ground that we erred in concluding that § 6-07-04 was a special statute and as such it prevailed over §§ 6-05-27 and -29. We disagree.
Speaking of the difference between general and special statutes, this Court has said:
“ ‘ “A statute relating to persons or things as a class is a general law; one relating to particular persons or things of a class is special.” * * * "Special laws are those made for individual cases, or for less than a class requiring laws appropriate to its peculiar condition and circumstances.” * * * A “general law,” as the term is used in this constitutional provision, is a public law of universal interest to the people of the state, and embracing within its provisions all the citizens of the state, or all of a certain class or certain classes of citizens. It must relate to persons and things as a class, and not to particular persons or things of a class. It must embrace the whole subject, or a whole class, and must not be restricted to any particular locality within the state.’ ” Ferch v. Housing Authority of Cass County, 79 N.D. 764, 59 N.W.2d 849, 864 (1953).
Applying this definition to the provisions of § 6-07-04, we held that it was a special statute, first, because it confers certain powers and duties only upon the State Examiner, and, second, because the powers and duties referred to therein are limited to a specific thing or purpose, that *104of conserving the status quo as distinguished from the general purpose of dissolution and liquidation. Our statute (§ 1-02-07, N.D.C.C.) expressly provides, in effect, that a special statute prevails only over a general provision when two conditions exist: (1) a conflict must exist between the two, and (2) that the conflict must be irreconcilable. Applying this statutory test to the statutes here, in issue, we believe that a careful analysis of their respective provisions in the light of the subject matter to which they relate clearly show that there is no actual conflict between the intent and purpose thereof. Sections 6-05-27 and -29 do not authorize the State Examiner to make any administrative finding of insolvency nor do they authorize him to seize the property of a bank which he may find to be insolvent upon examination thereof, while § 6-07-04 does expressly so provide. We are convinced that there is no actual conflict, much less an irreconcilable one, between these statutes because they do not deal with or relate to the same subject matter. We believe, therefore, that in the absence of the existence of an actual and irreconcilable conflict between the statutes here, in issue, they must be construed and applied together so as to carry out and give full force and effect to the true legislative intent expressed therein.
Third. The respondent has critically assailed our interpretation of § 6-05-34. It asserts that we erred in failing to consider and to apply the rule, to the effect that the express mention of one thing implies the exclusion of another; that § 6-05-34 does not mention § 6-07-04 and, therefore, we should have held that it was inapplicable to the respondent, which is organized and functioning under Chapter 6-05.
This contention would have merit if it were not for the provisions of § 6-05-28 which expressly renders § 6-07-04 applicable to the respondent, not only for the reasons set out in our opinion but for the further reasons:
(1) That § 6-01-09 provides in part that the State Examiner shall exercise constant supervision over the business affairs of all financial corporations and institutions placed within the jurisdiction of the State Banking Board. It is reasonably certain that the respondent is within the jurisdiction of the State Banking Board and that this section applies to it notwithstanding that it is not mentioned in § 6-05-34;
(2) It is equally certain that §§ 6-01-06, 6-07-05, and 6-07-06 likewise apply to the respondent even though they, too, are not expressly mentioned in § 6-05-34; and
(3) That § 6-05-28 expressly declares in part that the State Examiner shall assume and exercise “over each such corporation and its business ... all the power and authority conferred upon him over banking and other financial or moneyed corporations or associations.” [Emphasis supplied.] The word “all” has been defined to mean everything to which it applies. It does not mean some or a part, but means the whole or its entirety. Ulrich v. Amerada Petroleum Corporation, 66 N.W.2d 397 (N.D.1954). Manifestly, if we interpret § 6-05-28 in the light of this definition then it is reasonably certain that the authority to seize the property of a banking institution in the event of its insolvency under § 6-07-04 is one of the unquestionable powers which the State Examiner is required to assume and to exercise under the mandatory provisions of § 6-05-28.
These facts serve to confirm, rather than to impair, the validity of our decision on this issue and that under these circumstances the rule invoked and relied upon is of little value as an aid to statutory construction.
Fourth. The respondent vigorously insists again that we erred in sustaining the validity of the State Examiner’s Order No. 1 because this conclusion, in effect, constitutes a determination that *105the State Examiner has the power to arbitrarily determine that a banking institution is insolvent without any notice whatsoever and to seize its property without an opportunity to be heard on the issue of its insolvency.
It maintains that this determination is not only unreasonable and unsound but utterly inconsistent with our decision that only the State Banking Board had the authority to make such determination upon reasonable notice to and a fair hearing before it on the issue of insolvency. We disagree for three reasons. They are:
(1) That the State Examiner is not an officer in the sense that said word is defined and used in § 28-32-01 of the Administrative Agencies Practice Act for the reason set out in our opinion, and consequently the procedural requirements of said Act do not apply to the State Examiner when he is acting, as a conservator, in an individual capacity.
(2) We believe and find that there is a very substantial difference between the purpose and legal effect of a determination of insolvency made by the State Banking Board while acting as an administrative agency and an interim finding of insolvency made by the State Examiner when acting in an individual capacity pursuant to the provisions of § 6-07-04. These differences are:
(a) That the former requires the doors of a bank to be closed and its business to be discontinued, while the latter permits its doors to remain open and to continue its banking operations;
(b) That the former fixes and determines the rights and liabilities of all of the interested parties, while the latter is merely an intermediate finding to obtain possession and control for such period of time only as may be reasonably necessary for the State Banking Board to set up and hold a hearing on the issue of its insolvency;
(c) That the former is made for the purpose of appointing a receiver with the power to dissolve its existence, liquidate its business affairs and to distribute its assets, while the latter is only made for the purpose of preserving the status quo;
(d) That the former determination is final and binding upon all parties who had notice of or participated in the hearing before the State Banking Board unless it is modified or reversed upon timely appeal, while the latter is merely an interim finding subject to review before the State Banking Board and to judicial review thereof on appeal from its decision.
(3)We firmly believe that if § 6-07-04 were construed so as to require the State Examiner to hold a hearing on the issue of insolvency and to await the result of lengthy litigation before he has the right to seize the property of any banking institution, which he has found insolvent, that such interpretation, in the absence of a specific requirement to that effect would not only defeat the manifest legislative intent but would render said section wholly ineffective as a measure intended to protect the public and private interests in an emergency, which, as we have held, we have no power to do.
We are convinced that our interpretation of this section will not deny or deprive any banking institution of its constitutional right to due process of law, but on the contrary will fully safeguard and protect such right. That this interpretation of § 6-07-04 should set at rest once and for all the baseless and erroneous claims that, under our opinion, the State Examiner has the authority to arbitrarily find that a banking corporation is insolvent and to deliberately seize its property and to retain possession thereof for an indefinite period of time without the right of review before the State Banking Board and the right to a judicial review upon timely appeal from its decision.
*106Fifth. The respondent again insists that our interpretation and application of §§ 6-05-27 and -29 is unsound and erroneous. It claims that these are special statutes; that they are applicable to and govern the State Examiner’s actions and, therefore, he must first exercise all of the powers and discharge all of the duties imposed upon him thereby before he can resort to or exercise the right to seize the property of any banking institution under § 6-07-04.
We disagree because this contention erroneously assumes that the courts have the power to control and to direct the manner in which discretionary powers vested in an administrative agency or official should be exercised.
We are convinced that we have no such authority for the reasons:
(1) That it is a well established rule of law which has been recognized and approved by this court that where the performance of a legal duty involves the exercise of judgment and discretion the exercise of such judgment and discretion cannot be controlled by mandamus nor can the courts direct the manner in which such discretion should be exercised; and
(2) That the courts have no power to substitute their opinions for the judgment of qualified experts in matters entrusted to administrative agencies or public officials. Securities and Exchange Commission v. Chenery Corporation, 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626; Mogaard v. City of Garrison, 47 N.D. 468, 182 N.W. 758 (1921); State ex rel. Herbrandson v. Vesperman, 52 N.D. 641, 204 N.W. 202 (1925); Transport Oil Inc. v. Cummings, 195 N.W.2d 649 (Wis.1972); 2 Am.Jur.2d, Administrative Law, § 464, p. 277 and § 672, p. 546.
There is a sound and practical reason for these rules and that is that the courts do not have or possess the expert knowledge, training, experience, or competency to substitute their opinions for the judgment of qualified experts made in the exercise of their discretionary powers vested in them by the legislative assembly.
Sixth. Counsel for respondent claims that this court had to resort to and did exercise the power to legislate to justify its opinion. He asserts in effect that although we conclude that the right of appeal is purely statutory and that we have no provision in law providing for an appeal from or a review of the State Examiner’s intermediate ex parte orders that we proceeded to legislate in order to provide for both such right and remedy.
We think that this accusation is unfounded and unwarranted for the reasons:
(1) That § 6-01-04 expressly requires the State Banking Board to approve or disapprove the Examiner’s reports which he is required to certify to it; and
(2) That this section, as we construe it, necessarily implies the power to review, and that the power to review of necessity implies that the State Examiner is an inferior officer whose administrative findings and intermediate orders are subject to review and approval by the State Banking Board, his superior administrative agency.
Stated in other words, § 6-07-04 must be construed together with § 6-01-04, and when so construed it necessarily implies :
(1) The right to review of the interim findings and intermediate orders of the State Examiner; and
(2) The right to a judicial review thereof upon appeal from its decision. 2 Am. Jur.2d, Administrative Law, § 541, p. 351.
Seventh and finally. The respondent has bitterly denounced our interpretation that § 6-07-04 is a special statute enacted for the purpose of protecting the public and private interest in an emergency. It *107has challenged the propriety and wisdom of the legislative policy as we have interpreted it. It has again predicted the grave and tragic consequences that will ensue if we adhere to our decision sustaining the validity of the State Examiner’s Order No. 1.
We believe that this attack is unreasonable and indefensible for the reason that the Supreme Court of the United States and this Court have consistently held, in effect:
(1) That the legislative assembly is necessarily vested with a broad discretion to determine not only what the interests of the public require, but also what measures are necessary for the protection of that interest; and
(2) That the courts have no power to question the necessity, wisdom or utility of legislation or to substitute its opinions on matters solely within the province of the legislative assembly. Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385; Montana-Dakota Utilities Co. v. Johanneson, 153 N.W.2d 414 (N.D.1967); Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.E.2d 93.
We believe that a proper respect for and a decent compliance with these basic principles of law require that an attack upon the wisdom of the legislative policy should be made before the legislative assembly, and should not and ought not to have been made before this tribunal. Fetzer v. Minot Park District, 138 N.W.2d 601 (N.D.1965).
It must be self-evident from the conclusions we have expressed herein that we are convinced that our opinion, as we have held, is sound, reasonable, consistent with the true legislative intent, and is sustained by ample authority. Therefore, we adhere thereto. Under these circumstances we firmly believe that a rehearing would serve no useful purpose and, therefore, the original and supplemental petitions for a rehearing are hereby denied.
TEIGEN and ERICKSTAD, JJ., concur.
STRUTZ, C. J., and PAULSON, J., deeming themselves disqualified, did not participate; EMIL A. GIESE and C. F. KELSCH, Judges of the Sixth Judicial District, sitting in their stead.
EMIL A. GIESE, District Judge, and KNUDSON, J., on the Order Denying the Petition for Rehearing indicated they would have granted a rehearing.