Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1893-06-09


predecessors in office, Harvey Harris and
Fred Fancher. The action was insti-
tuted when John P. Bray was auditor,
and on his retiring from office was
directed towards Mr.. Currle. The con-
tention was that the territorial law.
which allowed the secretary" OF the
board $500 per annum, was still in
force and that the laws of 1889 and sub.
sequent statutes allowing for the "clerk"
of the railroad commissioners $1,000 per
annum vas supplemental to the terri
torial law. This was the view taken Of
the law by Judge Winchester and he
ordered the issuance Of a writ Of man
damus to the state auditor compelling
him to audit the bills at this amount.
This railing is reversed as the following
syllabus will show:
Sections 50, So and 81 of the constitu-
ton of this state are considered in con-
nectlon with chapters 122. 1913, 125, log,
12S, 1877, 1SS and chapters 9 and 1Oof the
laws of 1890, and chapter 9 of the laws
of 1891, and held that said constltu-
tional provisions and said statutes Of the
state are in conflict with, and repugnant
to section q of chapter 10, laws of
1889, and hence said section q was never
in force in this state.
The state auditor has no authority
under existing laws to issue warrants on
the state treasurer to pay the salary Of
the clerk or secretary of the commits
sioners of railroads upon a basis of
$500 per annum as fixed by section %,
chapter 10, laws of 1889. Accordingly
held that the state auditor lawfully re.
fused TO issue such warrants to the re-
lator who held the position of secretary
from Jan. 4. 1891. until the end of Janu.
AIRY, 1898. The salary annexed to said
position is $1,000 per annum.
NJ. J. Edgerley, for plaintiff; w. H.
Standish, as attorney general, for de-
PENDANT; opinion by Walliu, J.
YoRKE VS. YoRKE.
But the case which will excite the
most interest, in all probability, is the
famous divorce suit Of Capt. Lewis A.
Yorke against Emma NJ. Yorke.
Mrs. Yorke is not known, per.
sonally, in the state, but her
gallant husband has been a resident of
North Dakota for a sufficient length of
time to have made a number of friends.
He resided in Dawson for nearly two
years; later in this city for some months
and at Fargo considerable. Both of the
suitors come from prominent families in
the east, and the captain has held
ceveral lucrative and important places
under the government; at n time he
was paymaster in the navy department.
In 1889 Capt. Yorke instituted an
action in the district court of Stutsman
county, for a separation of the matri.
monial bonds, basing his claim on the
ground of desertion. To this suit an ap.
pearance was made on behalf of the de-
PENDANT. Later the suit was dismissed
by the captain, the defendant claiming
that it was so done on a promise that
her attorney would be notified if it was
again instituted. But q short time
elapsed before a second action was com.
menced before Judge Mcconnell, at
Fargo, and this timeh alleged adultery
as well as desertion. An affidavit was
filed to the effect that the exact address
Of Mrs. Yorke was not known, and on
this showing an order was entered that
service should be made on her by pub.
fishing the summons, which was done in
the Commonwealth. Time rolled along
and no appearance being made by Mrs.
Yorke evidence was submitted to the
court and an absolute decree of separa-
ton entered. Then followed the mar
rage of the captain with the Countess
de Zyl,nchski, of this place. Shortly
afterwards business affairs called the
couple to Washington, where they now
reside.
Last fall Mrs. Yorke, the first, filed a
petition with Judge Mcconnell alleging
that she had e v received notice of the
tendency of the action for divorce, and
that a fraud had been perpetrated upon
the court when a showing was made
that her address was unknown, and on
the contrary it was we'll known to the
plaintiff. She further stated that had
she known the matter wat pending she
would have answered the charges, would
have denied them in toto, and as a
counter claim proven that the captain
had been guilty of the charge laid at her
door, stating that he had been criminally
intimate with certain persons, naming
them. On this petition Judge McCon-
nell issued an order to show cause why
the prayer should not be granted and
the decree annulled. After argument
the prayer of Mrs. Yorke wal granted
and the decree set aside. An appeal
was taken to the supreme court and the
order affirmed, so far as annulling the
decree is concerned, but adding thereto
that Mrs. Yorke should have thirty days
in which to appear and answer to the
complaint. This really sends the case
back to be heard on its merits, if issue is
Joined, as it certainly will be. It prom
ises to bo real 1iva1v hoforo II ia Gnollv