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District Court of Appeal, Third District, California.

Robert E. REID and Cecil E. Smith, Plaintiffs and Appellants, v. STATE of California, acting by and through the DEPARTMENT OF PUBLIC WORKS, Division of Highways, et al., Defendants and Respondents.

Civ. 10471.

Decided: October 22, 1962

H. D. Jerrett, Sacramento, for appellants. Robert E. Reed, Harry S. Fenton, Robert F. Carlson, Kenneth G. Nellis, Sacramento, for respondents.

This appeal is from an order of the trial court awarding respondents printing costs for appellate briefs and counsel fees for services rendered in the case of Reid v. State ex rel. Dept. of Public Works, etc., 193 Cal.App.2d 799, 14 Cal.Rptr. 597.

The issue relating to printing costs has been settled by the parties. Appellants contend that the trial court was without authority to award counsel fees because (1) Government Code, section 647 is unconstitutional in that it is discriminatory and an unreasonable classification; and (2) even if constitutional, the remittitur issued by this court on the former appeal did not authorize the trial court to award counsel fees. Both contentions lack merit.

Appellants had the opportunity to and did attack the constitutionality of Government Code, section 647 in its allowance of attorneys' fees to the state on the former appeal. The question thus raised was considered and ruled upon by the court adversely and the holding is the law of the case. (Reid v. State ex rel. Dept. of Public Works, etc., supra; see also Vinnicombe v. State of California, 172 Cal.App.2d 54, 59, 60, 341 P.2d 705.)

Regarding the second contention, the remittitur contained the standard phrase ‘Respondents to recover costs.’ Said Government Code, section 647 provides in part: ‘The undertaking shall be conditioned upon payment by the plaintiff of all costs incurred by the State in the suit, including a reasonable counsel fee * * *.’ Such fee is thus within the concept of ‘costs' as defined in the statute. The allowance of attorneys' fees contemplated by said section includes an allowance by the trial court for legal services on appeal. (Rio Vista Gas Assn. v. State of California, 188 Cal.App.2d 555, 565, 10 Cal.Rptr. 559.)

The order appealed from is affirmed.

PIERCE, Justice.

PEEK, P. J., and SCHOTTKY, J., concur.

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