                                No. 83-441
               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                     1984



JEANNE SPOTORNO, Lewis   &   Clark
County Auditor,
                     Petitioner and Appellant,


THE BOARD OF COMMISSIONERS OF
LEWIS & CLARK COUNTY, et al.,

                     Respondents and Respondents.




APPEAL FROM:   District Court of the First Judicial District,
               In and for the County of Lewis & Clark,
               The Honorable Henry Loble, Judge presiding.

COUNSEL OF RECORD:

        For Appellant:
               Charles A. Graveley, Helena, Montana

        For Respondent :
               Mike McGrath, County Attorney, Helena, Montana




                                Submitted on Briefs:    March 5, 1984
                                             Decided:   September 6, 1984




                                Clerk
Mr. Justice Daniel J.       Shea delivered the Opinion of the
Court.


     Plaintiff, Jeanne Spotorno, the Lewis and Clark County
Auditor, appeals an order of the Lewis and Clark County
District Court dismissing her petition for a writ of mandamus
brought to compel the Board of Commissioners to fund a deputy
auditor position that had          been eliminated by    the county
commissioners due to budget cuts.             In effect, the county
commissioners determined that the auditor could do the work
without the help of the deputy.          The trial court originally
granted an alternative writ of mandate, but then quashed the
writ and dismissed the petition on the ground that the county
commissioners had no clear legal duty to fund the position of
deputy auditor.      We affirm.
     The facts leading to the budget cut do not bear on the
legal issue.    Also, we need not consider this Court's prior
determination in Reep v. Board of County Commissioners of
Missoula County (Mont. 1981), 622 P.2d 685, 38 St.Rep. 108,
that the county commissioners are required to sufficiently
fund the auditor's office so as to allow it to perform the
minimum    duties    required     by   law.    The   District   Court
specifical1.y found that this issue was never presented for
its consideration.      The sole issue therefore, is whether the
county commissioners are required by l.aw to fund at least one
deputy    auditor.     We hold     that the trial court properly
dismissed the petition.
     Three statutes are invol~~ed,
                                 two of them dealing with
the authority to appoint deputies, and the third dealing
specifical.ly with     the number of deputy auditors that an
auditor may have in first, second, and third class counties,
Lewis and Clark County being a first cl-ass county.                        This
statute, section         7-6-2413, MCA,        expressly    provides     that:
     "The whole number of deputies allowed to county
     auditors must not exceed one in counties of the
     first, second.,and third classes."
It is clear by this statute tha.t the plaintiff here would be

limited to a maximum of one deputy auditor, although the
statute does not require that the auditor have even one
deputy auditor.
     The statutes controlling the appointment of deputies,
when read by themselves, are in conflict, for one statute
grants to the county commissioners what the other statute
expressly      grants     to      each    county    officer.           Section
7-4-2401 (1), MCA, originally enacted in 1895, provides in
pertinent:
     "Every county and township officer, except justice
     of the peace, may appoint - many deputies or
                                      as
     assistants as may be necessary for the faithful and
     prompt discharqe o f t h e duties of his office              . . ."
     (~m~hasis added. )
     In      1907,    however,     the   legislature       enacted     another
statute, now         codified    as   section 7-4-2402, MCA,           and   it
provides :
     "The board - county commissioners of each county
                 of
                             to fix and determine -
         hereby authorized - - -                     the
     number of county deputy officers and to allow the
     severalcounty officers to appoint a greater number
     of deputies than the maximum numbers allowed by law
     when, in the judgment of the board, such greater
     number of deputies is needed for the faithful and
     prompt discharge of the duties of any county
     office." (Emphasis added.)
     If we were concerned solely with sections 7-4-2401(1)
and 7-4-2402, MCA, an irreconcilable conflict would appear to
exist.    However, when these statues are considered in view of
section      7-6-2413,     MCA,       supra,   we   reach     a      different
conclusion.
       Although the plaintiff relies on section 7-4-2401(1),
MCA,      as   constituting her          authority      to    appoint           deputies
without the control of the county commissioners, section
7-6-2413, MCA, is a more specific statute that sets a cap on
the number of deputies a county auditor may have--one deputy.
This specific statute must control over the qeneral statute
(section 7-4-2401(1),            MCA)     which     applies      to    all       county
officers with        the exception of the county commissioners.
Furthermore, the specific statute does not mandate that the
auditor have one deputy, it simply permits a maximum of one
deputy.        The question becomes one of whether the auditor can
appoint        one   deputy      and     therefore       compel       the        county
commissioners to fund that position.                    We conclude, based on
section 7-4-2402, supra, that the auditor has no authority to
appoint a deputy; rather, the authority to determine the
number of deputies resides with the county commissioners.
       Section       7-4-2402,          expressly       allows        the        county
commissioners "to fix and determine the number of county
deputy      officers,"     and     to    permit     a   greater       number         than
permitted by statute if the cornmissianers believe that that
it   is     necessary      for   the     proper     discharge     of        a    county
officer's duties.          Here the commissioners determined that the
auditor could properly function without a deputy and they
therefore       refused    to    fund     the   money     for    the        continued
employment of the deputy auditor.                 In light of this statutory
scheme applicabl-e to auditors, we agree with the trial court
that no clear legal duty exists for the commissioners to fund
the position of deputy auditor.
       We      emphasize    that    we     confine      our   opinion           to   the
statutory framework that exists in this case.                         Were it not
for section 7-6-2413, which specifically limits the number of
deputy auditors to one, we would be faced with interpreting
what    appears   to    be    irreconciliable   statutes--sections
7-4-2401(1) and 7-4-2402, MCA.
       The order of the District Court dismissing the petition

for a writ of mandamus, is affirmed.      * -
                                           - 7




We Concur:




           Justices


Mr. Justice John Conway Harrison concurring in part and dissenting
in part.
       I would concur, but would limit the appellant's liability

for not being able to comply as required by sections 17-4-3003,
17-6-2412,17-6-2407J-6-2408      and 17-6-2409, MCA.
