Bruno

Defendants-appellants Roy M. Bell, as Director of Finance of the State of California and Kenneth Cory, as Controller of the State of California (defendants) appeal from that portion of a judgment which awards petitioner-appellant Russell Bruno (Bruno) $30,000 in attorney fees in conjunction with his successful prosecution of an action resulting in a declaration that Streets and Highways Code section 104.10 was invalid as in conflict with article XXVI of the California Constitution.

The primaiy issue is whether the trial court could have properly made an award of attorney fees upon any recognized exception to Code of Civil Procedure section 1021.

On April 29, 1975, Russell Bruno in pro. per. filed a petition for writ of mandate in superior court seeking, inter alia, a declaration that Streets and Highways Code section 104.10 was unconstitutional and an order requiring Roy M. Bell, as state Finance Director, to institute proceedings on behalf of the state for recovery of funds disbursed to counties and local agencies pursuant to that section.

Section 104.10 was first enacted in 1959 (Stats. 1959, ch. 2157, § 2, p. 5214), and dealt with the distribution of rental income…