Mills v. County of Trinity

Opinion

PUGLIA, P. J.

Appellants, the County of Trinity and its board of supervisors, seek a writ of supersedeas. They are defendants in a proceeding in Trinity County Superior Court in which the respondent herein, Albert Mills, is plaintiff. In the proceeding in the trial court, Mills challenged the constitutionality of supervisors’ resolution No. 73-78 providing for increased fees for the Trinity County Planning Department and Surveyor. Mills contended that by reason of Proposition 13, which was approved as an initiative measure in June of 1978 adding article XIII A to the California Constitution, the increased fees called

[861]

for by resolution No. 73-78 constitute a special tax within the meaning of that article and cannot be imposed without a two-thirds affirmative vote of the electors of Trinity County. The trial court upheld Mills’ claim, ordered summary judgment in his favor and issued a peremptory writ of mandate. The writ ordered appellants to “desist and refrain from enforcing the provisions of resolution Number 73-78, enacted on August 28, 1978,” and further directed appellants to refund any and all monies received pursuant to said resolution which exceeded the amounts required under the fee schedule it superseded. Judgment was entered July 30, 1979, and appellants filed notice of appeal therefrom August 2, 1979.

In this verified petition for supersedeas filed August 29, 1979, appellants seek to restrain the enforcement of the peremptory writ of mandate pending disposition of the appeal. On September 6, we issued an order to show cause and temporary stay. Respondent Mills has filed his return by verified answer to the petition.

We have fully considered the respective rights of the litigants in this appeal and conclude that stay of the judgment is necessary to protect the appellants from the irreparable injury they will necessarily sustain in the event their appeal is deemed meritorious. A stay will not result in disproportionate injury to respondent in the event of an affirmance, since excessive fees may easily be refunded.

(California Table Grape Com.

v.

Dispoto