
    ROSS v. GAFFNEY CITY.
    Mandamus — Estoppel—Laches—Cities and Towns — Corporation.— A property owner and taxpayer of a town, who has signed a petition asking the exemption of a corporation from town taxes upon its location in the town, and in pursuance thereof the location is so made, he being a stockholder and having received more dividends than his increase in taxes would amount to, and there being unreasonable delay as to a part of the taxes, is estopped in mandamus proceedings against town and corporation from alleging the unconstitutionality of the action of the town, and from requiring the corporation to pay taxes.
    Petition in the original jurisdiction of this Court for mandamus against Gaffney City, its officers, and Gaffney Manufacturing Company.
    
      Messrs. Butler & Osborne, for relator, cite:
    
      Ordinance unconstitutional: 54 S. C., 449; 55 S. C., 551; 50 S. C., 337. Levies set tip in petition are valid: 50 S. C., 337; 55 S. C., 551; Con. 1895, art. X., sec. 13, acts 1896, p. 29. If not respondent cannot set up invalidity: 37 L. R. A., 371; 29 R. R. A., 526. Relator not estopped by signing petition and receiving dividends: 18 R. R. A., 596; 1 R. R. A., 175; 10 L. R. A., 259; 39 L. R. A., 725; 12 L. R. A., 235; 54 S. C., 449; 42 S. C., 293. No demand necessary: 24 L. R. A., 492.
    
      Messrs. Duncan & Sanders, also for relator, cite:
    
      Ordinance of 1892 void for want of authority: 20 Stat., 589; 55 S. C., 554. Assessment for State taxation is all that is necessary: 20 Stat., 589; 45 S. C., 457; 50 S. C., 344. No demand and refusal necessary: 142 U. S., 492; 123 Mass., 477-
    
      Messrs. Ansel, Cothran & Cothran and /. C. Jeffries, contra, cite:
    
      Relator not a citizen, and cannot maintain this action: 54 S. C., 449; 48 111., 233; 37 N. Y., 346; 101 U. S., 601. Demand and refusal necessary: 7 Rich., 322; 16 S. C., 524; 10 S. C,, 299; 117 111., 462; 41 Conn., 211. No assessment for municipal taxation: 54 S. C., 450, 576; 22 Stat., 59; Con. 1895, art. IX., sec. 13; 55 S. C., 551. levies for 1894, 1996 and 1897 are illegal: 20 Stat., 589; 45- S. C., 457. In absence of statutory authority, tax officers are limited to the one year: 16 S. C., 53, 524; 12 S. C., 82; Con. 1895, art. VIII., sec. 3; 77 N. C., 4; 88 N. C., 194; 58 Ala., 546; 32 La. Ann., 157, 1136; 71 Ala., 401; 31 Ark., 334; 76 N. C., 458; 29 Cal., 459; 1 Pick., 140; 74 Pa. St., 486; 129 Mass., 378; 102 Mass., 72; 84 Ind.,-108, 356; 80 Ind., 196, 466; 78 Ind., 353; 10 S. C., 299; 88 111., 469; 49 N. Y., 243; 91 N. Y., 593; 49 N. Y., 352; 27 S. E. R., 999; 52 N. Y., 434; 14 S. E. R., 698. The relator is estopped by his conduct from prosecuting this action: 13 S. C., 370; 17 S. C., 420; 19 S. C., 208; 42 S. C., 80; s Mass., 108; 102 U. S., 421; 5 Bush., 230; 84 Va., 557; 139 N. Y., 14; 33 N. E. R-, 145-
    March 30, 1900.
   The opinion of the Court was delivered by

Mr. Justice Gary.

This is a petition to the Court, in the exercise of its original jurisdiction for a writ of mandamus, requiring the town clerk of the town council of Gaffney City to restore and place upon the tax books the assessments against the Gaffney Manufacturing Company for the years 1894, 1895, 1896, 1897, 1898 and 1899; and to collect all taxes due upon the same. The defendants made returns to the rule to show cause, and the petitioner filed a reply to the return of the Gaffney Manufacturing Company. A report was filed by H. B. Carlisle, in pursuance of an order of this Court appointing him special master to take the testimony and report upon the facts. The petitioner herein was at times hereinbefore mentioned and still is a citizen of North Carolina, but was during the years mentioned and now is a taxpayer in Gaffney City, owning therein valuable real estate. The Gaffney Manufacturing Company has regularly since its incorporation in 1892 'returned its property for taxation for State and county purposes, but it has never made a return of its property for taxation to Gaffney City, nor has it paid to it any taxes except-the sum of $80 for each of the years 1898 and 1899 on the store run by the corporation in connection with its manufacturing business. Its failure to return its property and pay taxes to Gaffney City was on account of the following ordinance: “Whereas a majority of the freeholders within the incorporate limits of Gaffney City, South Carolina, did on the 2d day of July, 1892, petition the town council to exempt the Gaffney Manufacturing Company from town taxes for the period of ten years, be it ordained by the Town Council of Gaffney City in council assembled, and by the authority of the same: Section 1. That in the consideration of the manufacturing interests of all kinds, and the business to be conducted, operated and carried on by the Gaffney Manufacturing Company, and the public benefit to :>e derived therefrom, the intendant and town council waive to the said Gaffney Manufacturing Company, its officers, successors and assigns, all and any taxes, dues and charges that might now or may at any time be levied or assessed by the said intendant and town council of Gaffney City upon ill the plant (both real and personal property) employed or to be employed in said enterprise, for and during the peric of ten (io) years from thé date of the charter of the- sa: company. Sec. 2. That this ordinance shall be taken an construed as a contract, made and entered into between tl town of Gaffney City and the officers of the said Gaffnc Manufacturing Company, their successors and assigns i office, and may be enforced as such. Passed and ratifie in council, this the 5th day of July, A. D. 1892.” In Ma; 1899, another ordinance was passed by the town council e Gaffney City, exempting from taxation for municipal pu poses all manufactories having a paid up stock of $20,oc for five years. This ordinance was duly referred to tl qualified voters of the said town and ratified by a large m; jority.

The petition for the passage of the first ordinance hereii before mentioned was signed by the relator, M. L. Ros Plis dividends as a stockholder in - said corporation hau amounted to more than any increase of taxes which he ma have had to pay by reason of the said exemption. Tl Gaffney Manufacturing Company alleges in its return to tl rule to show cause, and it is not denied in the reply, that tl petition and ordinance passed in pursuance thereof, great! moved and-influenced.the said corporation in the location c its mill, and that the petitioner by his conduct in aiding t bring about the result, is estopped from instituting this prc ceeding. In the case of Daniels v. Tearney, 102 U. S., 41; the Court says: “It is well settled as a general propositioi subject to certain exceptions not necessary to be here note< that where a party has availed himself for his benefit of a unconstitutional law, he can not, in a subsequent litigatio with others not in that position, aver its unconstitutionalit as a defense, although such unconstitutionality may har been pronounced by a competent judicial tribunal in anothe suit. In such cases the principle of estoppel applies wit full force and conclusive effect.” Citing a number of ar thorities. Continuing, the Court says: “In the case fin cited, an injunction was applied for to prevent the collectio : a tax authorized by an act of the legislature, passed durg the late civil war, to enable the people of a county to .ise volunteers and thus avoid a draft for soldiers, and that iject had been, accomplished. In disposing of the case, e Court well asked, ‘Upon what principle of exalted equity lall a man be permitted to receive a valuable consideration rough a statute procured by his own consent, or subselently sanctioned by him, or from which he derived an t'erest and consideration, and then keep the consideration id repudiate the statute?’ ” The case of Daniels v. Tearney cited with approval in Purcell v. Conrad, 84 Va., 557. ’any other authorities are cited in the argument of the itorneys for the Gaffney Manufacturing Company, but the ise from which we have just quoted is sufficient to show le general principle governing such cases.

It is within the discretion of the Court whether it will rant the writ of mandamus in any case. The petitioner jrein signed the request for the passage of the ordinance ;reinbefore first mentioned, thereby tending his aid to iduce the corporation to locate its mill at Gaffney; it is leged that it was greatly influenced by this action; the petioner’s dividend as a stockholder in said corporation nounts to more than the increase in his taxes which he had 1 pay by reason of said exemption, and there has been ireasonable delay, at least as to a part of the taxes. Under 1 the circumstances i of the case, the petitioner is estopped -om asking the aid of this Court in granting him relief. There are other questions in the case, but having reached íe conclusion that the petitioner is not in a position to ask )r the writ of mandamus, they cannot properly be consid■ed.

It is the judgment of this Court, that the petition be ismissed.  