Page:North Dakota Reports (vol. 48).pdf/858

 ther state banks are subject to the tax provided by chap. 224 of the Laws of 1919, are not questions here presented. The majority opinion contains the following:

“It is not the duty of this court to legislate nor to search for a hidden meaning of plain and hitherto unambiguous words employed by the Legislature. We are not free to enter into the realm of speculation.”

If that language is applicable to any opinion, in this case it is that of the majority, for their opinion would seem to in effect judicially repeal and nullify chap. 118 of the Session Laws of 1921. It would seem also to judicially legislate that a taxpayer is not bound to object to his assessment within the time and in a manner fixed by law, in that he can wait until the taxes are placed into the hands of the sheriff for collection, and then assert reasons for nonpayment, which should have been presented to the board of county commissioners, and there is much more that we might say in just criticism of the majority opinion.

It seems clear from all we have above stated that this court should not attempt to assert or assume original jurisdiction herein.

J. V. McCORMICK, Trustee of the Estate of Max Schultze, a bankrupt, Appellant, v. THE UNION FARMERS STATE BANK of New Salem, N. Dak., a corporation and THE FARMERS & MERCHANTS STATE BANK of New Salem, N. Dak., a corporation, Respondents.

Appeal and error — action to declare a payment a preference under the bankruptey law is not triable de novo on appeal.

1. An action, instituted for purposes of declaring a deposit or payment of moneys to constitute a preference pursuant to the Federal Bankruptey Act, and, as such, tried in the District Court without a jury, is not triable, upon appeal, de novo in the Supreme Court.

Appeal and error—on appeal from judgment as to preference under Bankruptey Act, the findings are presumed correct.

2. In such action, the findings of the trial court are presumed to be correct unless clearly opposed to the preponderance of the evidence.