Daily inter mountain. [volume] (Butte, Mont.) 1881-1901, 1899-11-16

culatlOn,' 1t was held that the clerk
must act in a judicial capacity and de-
termine what sort of a newspaper meets
that requirement.
The occasion for the decision grew out
of the course pursued by the clerk of
the courts of Silver Bow county, in
whose judicial opinion, the Butte Times
is the one paper of general circulation
in this county. the Butte Miner and the
Inter Mountain not being worthy of
consideration under that head. He was
requested by an attorney to publish a
legal notice in the Inter Mountain, as it
was believed such a course would best
conserve the interests of justice, by Civ
ing the widest publicity to the case.
The clerk, who is personally antago-
nistic to this paper, pere!nptorily refused
to respect the request of the attorney,
whereupon Judge Lindsay was appealed
to for relief, with the result that the
| position of the clerk was sustained on
capacity. With all due respect for his
honor's legal acumen and breadth of
mind, it must be conceded that the ablest
of district judges have at times been re-
versed by the supreme court, and it
would be no discredit to his judicial ca
pacity and his conscientious regard for
duty were such a thing to happen to the
estimable gentleman who rendered the
Jao;riDr i, Att, ,,,.:.1,
The case will not be appealed, however,
inasmuch as the supreme court has al
ready decided that the clerk of the
courts acts in a ministerial instead of a
judicial capacity. February II, 1896, the
case Of Erwin VS.. Milne was heard by
the supreme court, on an appeal from
Silver Bow county. 1t involved the suf-
ficiency of an affidavit. upon which the
clerk of the courts had passed, acting in
a judicial capacity. In the opinion rem
dered by Associate Justice Dewitt, con-
CURED in by the full bench, it was held
that the duties Of the clerk of the courts
are ministerial and not judicial. pacific
Reporter. vol. 43, p. 900. The following
excerpt from the opinion is pertinent to
the question under discussions:
Under the law Of 1887, it was a minis
terlal act for the clerk to cause a sum- !
mons to be served by publication, and !
in the performance of this act the clerk |
is a ministerial officer. palmer VS.. Nc
s Mont. p. 1913. 10 Pac. $3.50.
Therefore, does the reasoning which re- |
quires the probative facts to be brought
hafn1,a a i1rdjnia1 nfSnnv %ho% ~ \
judicially determine whether the proba-
tive facts establish the ultimate facts, !
apply to the matter when brought before |
4 ministerial officer for ministerial ac- |
ion? We think not. - = = s. But
officers have no judicial
powers. and we cannot contemplate that
the legislature, in the law of 1887, even
intended to attempt to give judicial
powers to ministerial officers, viz, the
clerk of the courts. Therefore, if the
clerk is a ministerial officer-and in this
he is-fPalmer vs. McMaster, s
p. 1913, 10 Pac. 5S5)-would it be
to hold that a matter coming
to him for ministerial action must be
presented as a judicial officer? We think
not. Or, in other words, if the matter
must be presented to the clerk for judi
cial action, he is a judicial officer pro
hac vice. palmer VS.. McMaster, supra).
We are satisfied that-the act of the
clerk. under the law of 1897. in causing
the summons to be published, being a
ministerial act-it is necessary only to
present the application by affidavit to
him as q ministerial officer.
From thef foregoing it will be seen that
the supreme court regards the clerk of
the courts as a ministerial officer. If
by what right does he act in a judi
cial capacity in ordering the publication
of a summons? BY what right does he
assume to stand between the parties to
an action, in a judicial way, by deter
mining as to the suf1iciency of the pub
LEGATION as required by law? Has. he any
more right to judicially determine the
sufiiciency of the notice given the parties
to an action, than he has to determine
the sufficiency of an affidavit bearing on
a case? The supreme court holds that
the clerk acts in a ministerial capacity,
but the clerk of the ourts of Silver Bow
county acts in a judicial capacity. 1t
under which the supreme court decision
given is still upon our statute books.
Colonel Bryan is surrounded by heroes,
since he declared that ~anti-expansion
should be the paramount issue of 1900,
instead of free coinage. There is ohm
Sherman, the hero of the crime of 70:
Andrew Carnegie. the hero of the Home
stead labor troubles; Dick Croker, the
hero of the ballot-box suffers of Tam
many; and a large and choice selection
of lesser lights.