Daily inter mountain. [volume] (Butte, Mont.) 1881-1901, 1899-11-23
THAT DECISION.

of the Anaconda Standard the Statement
is made that Judge Lindsay did no,
make a ruling to the effect that the
officer, as was previously set forth
on this page of the Inter Mountain. II
may be technically true that his honor
did not hold that the clerk, per Sc, is a
judicial officer, but in ascribing to that
individual judicial powers in the matter
of determining the publication of legal
documents passing through his hands,
it amounted to the same thing. Inso-
far as that particular function is on
cerned, the distinction is without a diff
ference.
Section 637 Of the code of civil proceed
ure provides that 1.-The clerk of the court
cause the service of the summons to be
made by publication thereof while Sec
ton 63S further provides that the order
of the clerk must direct the publication
DESIGNATED as most likely to givs
notice to the person to be served, at least
once a week for four successive weeks"
1t is clear from the foregoing that it is
the duty of the clerk to see that the pub
LEGATION is made in a newspaper that is
designated as most likely to give the
proper notice to the party to be reached
by the The law does not
q :, fhat thu o1Av1y rl,a,. IT.
paper in which such notices shall be pub
lished. but that he shall direct the publi-
cation in a paper "to be designated"
II a clerk acts in a ministerial capac-
lty he should accommodate himself to
the conditions that environ each partic-
case, that the publication may be
made in a newspaper "most likely to
give notice to the person to be served"
If, on the other hand, he has the judicial
power to arbitrarily name any paper
which he sees fit, without reference to
the likelihood of the publication serving
it's purpose, his opportunity to rob par
ties in interest of a proper notice,
through obscure publications, cannot
be doubted.
By exercising this judicial function of
arbitrarily determining the question Of
suficiency of the notice given, there is
nothing to deter a clerk from playing into
the hands of favorites, should he see fit
to do so. Under such a ruling, he could
judicially hold that any prominent daily
800, ... ~ g 49,. .y --,
could not "be designated as most likely
to give notice to the person to be served"
but that Il weekly publication, with per-
haps a mere handful Of legitimate SUBJ
scribers, alone came within the purview
of the law.
If the question of sufficiency of publ
cation is raised in any case it comes be-
fore the district court for determination,
not as an appeal from the decision rem
dered by the clerk as to it's sufficiency in
the first place, but as an original action.
The supreme court has held that the clerk
cannot pass upon the sufficiency of an
affidavit in a suit that is instituted;
eAiN - IN 'tP'1 opoA TX oulitCiCIlCy VI
the publication made, outside his minis
terial limitations, he certainly acts in a
judicial capacity.
If the parties to a suit are entitled to
commence action, regardless of the judi
cial foresight of the clerk, it would seem
that they have some rights in the matter
Of 1nctn,oiinr tho ;r x-t:-l
the legal notices printed at their expense
shall be published, unless it can be shown
that the papers so designated are no
"most likely to give notice to the person
to be served" Does the law impute wider
knowledge to the clerk thar to the parties
to an action as to what their a~ffldavits
in an action should state in the relation
of facts? Should the clerk assume a
wider knowledge as to what newspaper
should or should not be designated for
the publication of a legal notice in which
the parties to the action are interested,
n for which they pay?
The law certainly does not give the
clerk power to select any newspaper that
may suit his personal fancy, or meet the
approval of his political managers, but
it provides that he shall direct the pub
LEGATION to be made in a newspaper that
is ito be designated" Why should the
code provide that a shall .be
designated for such publication, after
authorizing the clerk to direct that the