Guardia v. Johnson

California Court of Appeal

Guardia v. Johnson

25 P.2d 856, 134 Cal. App. 574, 1933 Cal. App. LEXIS 187

CourtCalifornia Court of Appeal

DecidedOctober 10, 1933

DocketDocket No. 8012.

StatusPublished

Cited by2 cases

This text of 25 P.2d 856 (Guardia v. Johnson) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Guardia v. Johnson, 25 P.2d 856, 134 Cal. App. 574, 1933 Cal. App. LEXIS 187 (Cal. Ct. App. 1933).

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Opinion

STEPHENS, J.

Plaintiff below, respondent here, retails gasoline to motorists and purchased a large quantity thereof for resale and paid the tax thereon. It leaked out of his tanks. The law provided that those “who shall buy and use any motor vehicle fuel for purposes other than in motor vehicles operated upon the public highways, etc.,” may have the tax refunded by applying to the state controller under certain conditions. The conditions have been complied with. The superior court overruled demurrers to the complaint and as no amendment was proffered, judgment was entered in favor of plaintiff. The appeal is upon the judgment and the points raised are (1) The complaint is one at law and the municipal and' not the superior court has jurisdiction ; (2) The refund is limited to fuel not only bought for but actually used and that leaked gasoline has not been used.

There is nothing in either contention. While the action is cast in the form of an action at law, its allegations show conclusively that the relief sought is a mandate to the state officers to do their duty and return the tax. The second contention is based upon detached words of the tax act and not upon its plainly expressed intention. The act provides for a tax upon gasoline used as fuel in vehicles propelled upon the highways. The tax goes to construct and maintain these highways. The rational of this *576 case is covered by Oswald v. Johnson, 210 Cal. 321 [291 Pac. 579].

Judgment is affirmed.

Craig, Acting P. J., and Arehbald, J., pro iem., concurred.

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STEPHENS, J.

Plaintiff below, respondent here, retails gasoline to motorists and purchased a large quantity thereof for resale and paid the tax thereon. It leaked out of his tanks. The law provided that those “who shall buy and use any motor vehicle fuel for purposes other than in motor vehicles operated upon the public highways, etc.,” may have the tax refunded by applying to the state controller under certain conditions. The conditions have been complied with. The superior court overruled demurrers to the complaint and as no amendment was proffered, judgment was entered in favor of plaintiff. The appeal is upon the judgment and the points raised are (1) The complaint is one at law and the municipal and' not the superior court has jurisdiction ; (2) The refund is limited to fuel not only bought for but actually used and that leaked gasoline has not been used.

There is nothing in either contention. While the action is cast in the form of an action at law, its allegations show conclusively that the relief sought is a mandate to the state officers to do their duty and return the tax. The second contention is based upon detached words of the tax act and not upon its plainly expressed intention. The act provides for a tax upon gasoline used as fuel in vehicles propelled upon the highways. The tax goes to construct and maintain these highways. The rational of this *576 case is covered by Oswald v. Johnson, 210 Cal. 321 [291 Pac. 579].

Judgment is affirmed.

Craig, Acting P. J., and Arehbald, J., pro iem., concurred.

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25 P.2d 856, 134 Cal. App. 574, 1933 Cal. App. LEXIS 187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guardia-v-johnson-calctapp-1933.

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