
    State, for the Use of C. H. Groves, and Others, Appellant, v. Trust Company of Georgia, as Trustee, and Others, Appellees.
    198 So. 844
    En Banc
    Opinion Filed November 26, 1940
    Rehearing Denied December 20, 1940
    S'. J. Stiggins, for Appellant;
    
      Gaines & Futch and Truman G. Futch, Jr., for Appellees.
   Per Curiam.

This was a suit to foreclose certain alleged drainage tax certificates. The assessment was alleged to have been based on the provisions of Chapter 11850, Special Acts of 1927. Amongst other things, Chapter 11850, supra, provides, in Section 4:

“Sec. 4. That the said I. R. Legette, P. M. Cate, and R. L. Carpenter are hereby constituted a committee to construct said drains and ditches, and the County Commissioners of Sumter County shall assess and levy against the lands in said district in their county the amounts heretofore assessed by the Committee aforesaid against said lands, such, levy to be made and assessed one-third of the total amount of such assessment in each year for three years, and at the request of said committee said County Commissioners of the said County shall also assess and ■ levy against said lands for preliminary expenses of engineers, surveys and estimates, committee expenses, including attorney’s fees, and additional sum not exceeding twenty-five cents per acre on the lands assessed for benefits, and said committee is hereby authorized 10 borrow in the name of said district such sums of money as may be necessary to pay said preliminary expenses heretofore incurred or to be incurred and necessary to the construction of such drains and ditches, such sums so borrowed to be paid out of the special taxes hereby provided for such.”

It, therefore, follows that it was necessary for the complainant to show an assessment, etc., made by the named committee prior to the passage of the legislative Act. No other levy was validated, approved or authorized by the Act.

The record not only fails to show that any levy had been made by the named committee prior to the legislative Act, but the preponderance of the evidence affirmatively shows that no levy had been made by that committee.

It follows that the decree must be affirmed and it is so ordered.

Affirmed.

Terrell, C. J., Whitfield, Buford and Ci-iapman, J. J., concur.

Brown and Thomas, J. J., dissent.  