I dissent.
Reduced to simple language, the principal question that has been submitted to this court is whether—at the expense of the Pacific States Savings and Loan Company—the building and loan commissioner is vested with legal authority to employ special counsel and assistants for the purpose of defend*582ing his initial action in “taking possession” of the business of the Pacific States Savings and Loan Company. It is conceded that if any such authority therefor exists, either it must be expressly declared in the language of the general enabling statute, or it must impliedly result therefrom.
It is a matter of public knowledge that, prior to the date of the enactment of section 473a of the Political Code, an evil of considerable magnitude existed in the administration of each of possibly dozens of boards and commissions of this state—in that each of them was legally empowered to select and appoint an attorney to prosecute or to defend any action or suit in which such board or commission actually was or conceived itself to be officially interested. In instances where it had been properly exercised, the effect of that power, in itself, may not have been particularly harmful; but, with the lapse of time, certain patent abuses of such authority crept into the practice, with the usual result that, not only as it affected the general public but also as concerned individuals, the operation of the law which conferred such authority in that regard became extremely objectionable, if not intolerable. Manifestly for the purpose of correcting such condition in the economies of state government, at the 1933 session of the legislature, section 473a of the Political Code was enacted. Since its pertinent provisions have been set forth in the prevailing opinion herein, it becomes unnecessary here to do more than appropriately refer thereto as occasion may arise. But, as far as the instant question is concerned, and, shorn of non-essentials, the purport of the provisions of the statute is that “no . . . commission ... of the State . . . shall employ any legal advisor or attorney other than the Attorney General, ... in any matter in which such . . . commission ... is interested. Whenever the provisions of any existing statute authorize any . . . commission ... to employ an attorney . . . the terms of such statute shall ... be deemed and construed to refer to an assistant or . . . deputy . . . of the Attorney General. . . . The cost of all such legal services performed or rendered . . . for a . . . commission . . . shall be paid from the moneys . . . made available by law, for the support of such . . . commission, ...”
Prior to the enactment of section 473a, Political Code, by the language of section 13.02 of the Building and Loan Act, *583as amended (Stats. 1931, p. 483), it was provided that “The commissioner shall have power to appoint an attorney, ...” But by section 13.16 of the same act, it was provided that “In liquidating the affairs of an association, the commissioner . . . may also employ such special legal counsel ... as may be needful and requisite . . . All such salaries ... as may be incurred in the liquidation shall be paid by the commissioner from the funds of such association ...” (Emphasis added.) And by the terms of section 4 of an amendment to the Building and Loan Act, which became the law on September 15, 1935 (Stats. 1935, pp. 1497, 1502), the commissioner was again accorded authority, in language identical with that contained in the Statutes of 1931 (sec. 13.16), to employ special counsel in liquidating the affairs of a building and loan association.
In the premises, it is the duty of this court to determine the status of the law with respect to the question thus presented whether the commissioner is authoried to select and appoint “special legal counsel” to represent him in his official capacity, particularly with reference to his initial action in “taking possession” of the affairs and business of the Pacific States Savings and Loan Company,—with liquidation thereof probably as his ultimate object. To that end, the legal effect of the 1935 amendment to the Building and Loan Act, to which attention just has been directed, first may be considered. As an initial premise to such consideration, it may not be improper to assume that by the language employed in the Building and Loan Association Act of 1931 the commissioner was empowered, generally, “to appoint an attorney”; and that in liquidating the affairs of an association he was authorized to employ “such special legal counsel . . . as may be needful and requisite”. Also, it may properly be assumed that by the direct terms of section 473a of the Political Code the commissioner was deprived of the right which he had formerly possessed to employ either general or special counsel. However, the amendment of 1935—as far as it purported to empower the commissioner “in liquidating the affairs of an association . . . [to] employ such special legal counsel ... as may be needful and requisite”—was couched in language identical in all respects with that which had obtained in the statute of 1931 with respect to the same *584situation; and in that regard, in the main decision herein, it is asserted that the effect of the 1935 amendment was that the pertinent provisions of section 473a of the Political Code were impliedly repealed, and that the provisions of the 1931 amendment were restored. In that respect, it should be noted that by the provisions of the statute of 1931 the subject of the appointment of an attorney is divided into two parts,—first, by section 13.02, in which the appointment of “an attorney” is authorized, and, secondly, by section 13.16, which provides that “In liquidating the affairs of an association, the commissioner shall have power ... to commence and prosecute all actions and proceedings necessary to enforce liquidation; . . . and may also employ such special legal counsel, .... as may be needful and requisite ...” Were it not for the serious manner in which the effect of the provisions of section 473a of the Political Code has been considered—and construed to the contrary—in the prevailing opinion herein, it would seem incontestible that language which, in so many words, declares that “No . . . commission . . . shall employ any legal ad-visor or attorney other than the Attorney General” could mean anything other than what it plainly appears to import. And, under the assumption that section 473a actually does mean what it purports to say, the conclusion may be drawn that the commissioner was without authorization either to appoint “an attorney” (as had been provided by section 13.02 of the 1931 Building and Loan Association Act), or to employ “special legal counsel ... in liquidating the affairs of an association” (as was also provided by section 13.16 of that act). Thereupon, it may be conceded that the 1935 amendment to the act, by which the provisions of section 13.16 were reenacted,—to the effect that only in liquidating the affairs of an association was the commissioner authorized to employ “special legal counsel”,—abrogated to that extent, but to that extent only, the provisions of section 473a of the Political Code. In other words, the 1935 amendment had the effect of restoring to the Building and Loan Association Act the pertinent provisions of section 13.16,—but it had no effect whatsoever on section 13.02 of the act. Otherwise stated, the commissioner had no authority “to appoint an attorney”, except in connection with the process of “liquidating”, pursuant to his “Powers upon liquidation” (see caption of section 13.16) *585—in which event he was authorized to “employ special legal counsel”. (Emphasis added.)
The original Building and Loan Association Act of this state became the law with reference to building and loan associations in 1893. (Stats. 1893, p. 229.) By the provisions of that act, the office of commissioner was created and his powers and duties as such were therein defined. Thereby, generally, he was authorized to examine in minute detail into the financial status of those organizations; and if, on any examination of any such association, in the opinion of the commissioner the business of the association appeared to be in an “unsafe” condition, it became his duty, through the office of the attorney general, to institute court proceedings with a view to the possible liquidation of such association. In nearly every session of the legislature held since that time, the act has been variously amended, but it was not until 1931 that the act was amended to provide that the attorney general might be relieved of his duties with respect to representing the commissioner in proceedings in court. Prior to 1931, the commissioner was not legally authorized to employ any counsel other than the attorney general, and the latter was authorized to represent the commissioner only in liquidation proceedings, or those which related thereto. If it is a fact, as is confidently asserted by the commissioner and so conceded within the prevailing opinion herein, that at all times since the creation of the Bureau of Building and Loan Associations in this state the commissioner has been represented by counsel other than the attorney general, it is clear that such employment was not in accordance with the law, but was contrary to it. The theory of “contemporaneous construction” can be of no avail in the face of such conditions. By statutory provisions, it is clear that two distinct divisions of public business have been recognized as appertaining to the administration of the office of commissioner,—first, the duty of attending to the ordinary routine in connection with the “supervision, examination and license of all building and loan associations”, and, secondly, in the event that any such association should be deemed to be “unsafe”, that of instigating proceedings which—assuming the facts to justify such action—might result in an order of liquidation. But, as hereinbefore has been indicated, at the legislative session in 1931 the act was so amended that, by the provisions of section 13.02 thereof, the *586commissioner was empowered "to appoint an attorney”; and, in addition thereto, in accordance with his "Powers upon liquidation”, under section 13.16 of the act, he also was authorized to "employ such special legal counsel ... as may be needful and requisite ...” But until “liquidation” has commenced no such authority is vested in the commissioner, as is clearly indicated by other provisions of the act. Under the caption of “Power to take possession of association”, section 13.11, in effect, provides that if, as a result of his examination of the business affairs of an association, the commissioner shall discover the existence of certain specified conditions therein, "then the commissioner may forthwith demand and take possession of the property, business and assets of such association and retain such possession until such association shall with the consent of the commissioner resume business, or until its affairs be liquidated. Such association may, with the consent of the commissioner, resume business upon such conditions as may be approved by him.” (Gen. Laws 1937, p. 599.) (Emphasis added.) In effect, practically demonstrating the fact that such “taking of possession” is no part of “liquidation” of the association, but in fact is a proceeding preliminary to and in anticipation of the possibility of such liquidation, section 13.12 plainly provides that “Whenever any association of whose property, business and assets the commissioner has taken possession, as aforesaid, deems itself aggrieved thereby, it may at any time within thirty days after such taking possession apply to the superior court of the county in which the principal office of such association is, located, to enjoin further proceedings; and said court after citing the commissioner to show cause why further proceedings should not be enjoined, and hearing the allegations and proofs of the parties and determining the facts, may upon the merits dismiss such application or enjoin the commissioner from further proceedings and direct him to surrender such business, property and assets to such association”. (Gen. Laws 1937, pp. 599, 600.) (Emphasis added.) Furthermore, by section 13.13, it is provided that "Unless the commissioner shall be enjoined from further proceedings and directed to surrender such business, property and assets or unless such association shall with the consent of the commissioner resume business, then the commissioner shall proceed to liquidate the affairs of such association as hereinafter pro*587vided. Whenever the commissioner shall be in possession of the business, property and assets of any association, and regardless of whether or not he shall be liquidating the affairs of such association, the commissioner may in his discretion, etc., ...” (Gen. Laws 1937, p. 600.) (Emphasis added.) Thereafter, within that same section of the act are found general provisions which relate to various duties and discretionary powers of the commissioner in connection with his application for confirmation by the court of his action in “taking possession” of any association, with regard to the payment of current expenses incurred prior to his taking possession, and also as to his authority to disaffirm any executory contracts to which the association may have been a party. Section 13.14 of the act relates to consequences which may ensue by reason of a refusal by the association to comply with the commissioner’s “demand of possession”; and section 13.15 requires that the association “furnish schedule of property”. But in the succeeding section, designated as 13.16, may be found the provisions which set apart and distinguish the act of “taking possession” from that of “liquidation”. Furthermore, as hereinbefore has been indicated, by the provisions of section 13.12 of the act, any association which “deems itself aggrieved” by the act of the commissioner in “taking possession” is authorized to institute a proceeding in the superior court “to enjoin further’proceedings” by the commissioner ; and after “hearing the allegations and proofs of the parties”, the court may “upon the merits dismiss such application or enjoin the commissioner from further proceedings ...” (Emphasis added.) As has also hereinbefore been indicated, section 13.16 is entitled “Powers upon liquidation.” Therein, folloiving either a judgment by the court or a prior uncontested determination by the commissioner that liquidation shall ensue, the several powers and duties of the commissioner are set forth in detail,—including his right to “employ such special legal counsel ... as may be needful and requisite ...” To render unmistakable the fact, herein assumed, that the act of “taking possession” is separate and distinctly severable from the process of “liquidation”,—it is clearly shown that by the provisions of section 13.12 either the association or the commissioner is given the right to appeal from a judgment that may be rendered with direct reference to the act of “taking possession”. In that *588regard, the situation may be comparable to that of an administration upon the estate of a deceased person. Although administration of an estate as a whole may consist of one entire proceeding, nevertheless, from each of various and sundry orders which may be made by the court in the course of such proceeding, an appeal is permitted (see. 1240, Probate Code; sec. 1233, Code Civ. Proc.),—thus indicating that each of the matters embraced within such several orders may be separate and severable from the administration of the estate as a whole.
But, both by counsel who represent the commissioner and by those of my associates who subscribe to the doctrine announced in the prevailing opinion herein, it is declared, first, that the' provisions of section 473a of the Political Code apply only to “public” duties of the commissioner; secondly, that in the instant matter the commissioner is not engaged in the performance of a “public act”, but that he is merely exercising his prerogative as a trustee in the administration of a private trust,—and as a consequence thereof that he has an implied power to employ “special counsel”. With respect to such conclusions, it should be noted that neither by express language contained in section 473a nor by any legal precedent whatsoever is such a determination warranted or justified. The language of section 473a is singularly free from ambiguity. In distinct terms, it declares that “no commission . . . shall employ any legal advisor or attorney other than the attorney general ... in any matter in which such commission is interested”. (Emphasis added.) By what process such language may be “construed” so as to exclude from its plain and express import such a matter as the one which forms the basis for the instant controversy is not shown. Moreover, it is clear that authority to perform each and every duty or act that lawfully may be performed by the commissioner as such is derived from the provisions of the statute. In other words, all his powers -and duties as a commissioner are derived from the provisions of the enabling statute. All his lawful acts as such commissioner are “public” duties. Certainly as a private citizen he would have no authority to “take possession” of the property and assets of any building and loan association. When he performs such an act, necessarily he assumes to do so solely in his official capacity, with the consequence that his acts in that regard must be deemed to be *589“public” acts. Except for the proposition that in a sense every public officer in the performance of his duties as such is a trustee for the public, in the instant case there is no resemblance in fact to the relationship of trustor and trustee. In the sense here under consideration, as well one might say that a sheriff in making an unauthorized execution sale in a foreclosure proceeding is a trustee, as to say that the commissioner is a trustee in the instant matter. In respect to the duties of a public officer, in an appropriate case, perhaps a closer analogy might be found in those duties performed by a public administrator in the care and management of the estate of a deceased person. For example, if on the death of a wealthy person, who at the time thereof was living with his wife and children within this state, the public administrator were to seize and “take possession” of the property and assets of the estate,—until his legal authority to do so had been established, certainly no such powers as ordinarily flow from a legal trusteeship would be vested in the public administrator ; and if, following a contest with regard to his assumed right to “take possession” such act was not sustained by judgment of the court,—by no rule of law or equity would the public administrator be entitled to withdraw funds from those of the estate in order to compensate “special legal counsel” whom he had employed in the matter of his attempt to justify his act in “taking possession” of the assets of the estate. Certainly the act of intrusion and usurpation, even though performed by a public officer in pursuance of an assumed public duty, could form no foundation for a claim of equitable trusteeship sufficient to support an assertion of any rights that might accrue under a trusteeship which might have been legally created, or one which ordinarily might arise from the relationship of the parties. Manifestly, it should be apparent that when the legality of the act of “taking possession” is properly challenged in an appropriate proceeding in court, any principle of equity which ordinarily might be applied with regard to either the express or implied rights and duties of a legally constituted trustee has no application.
If, as heretofore has been suggested, the act of “taking possession” of the assets of an association may properly be considered as a matter distinct and separable from the process of “liquidation” of such association, the language employed *590in section 13.16 becomes most significant, if not controlling, in the matter of determining whether, the commissioner was authorized to employ special counsel in defense of his initial action. In that section, which is captioned “Powers upon liquidation”, all the provisions are based upon the assumption that “liquidation” either has been adjudged by the court, or that, in the absence of an objection or contest by the association of the act of the commissioner in “taking possession”, the latter—in the exercise of his powers in that respect—has determined that liquidation shall follow. With that consideration in mind, the general language of the section becomes of great importance. It purports to detail the powers of the commissioner,—not on “taking possession” but, specifically, “Upon liquidating”. In fact, the opening words of the statute are: “In liquidating the affairs of an association, the commissioner shall have power . . . [including that of employing special legal counsel].” (Emphasis added.)
Counsel who represent the commissioner, as well as the members of this court who adhere to the prevailing opinion herein, insist upon “construing” not only the language of section 473a of the Political Code, but also that contained in section 13.16 of the Building and Loan Act. But nowhere is it pointed out what particular words or phrases of either statute are in need of any such treatment. To my mind, the language of each of such statutes, as well as the manner in v'hich it is couched, requires no “construction”. That language is so plain, explicit and direct in its import that, in all fairness, its meaning may not be questioned. And, in accordance with the well-established rule, unless the language of a questioned statute is ambiguous or uncertain a court is without authority to “construe” it or to accord to it any meaning other than that which is plainly expressed. (23 Cal. Jur. 721, and authorities there cited.)
On consideration, therefore, of the express provisions of the pertinent statutes to which attention hereinbefore has been directed, to my mind the only logical or justifiable conclusion that .may be reached thereon is that no authority exists on the part of the commissioner to employ “special counsel” until after liquidation of the affairs of an association has commenced, or where such action has been duly authorized.
Since each of the other questions presented is either subsidiary to or dependent upon the determination reached on *591consideration of the main question, it becomes unnecessary to devote attention to any of them herein.
Curtis, J., and Edmonds, J., concurred.
Rehearing denied. Curtis, J., Edmonds, J., and Houser, J., voted for a rehearing.
Spence, J., pro tern., sat in place of Gibson, J., who deemed himself disqualified.