
    [Civ. No. 8012.
    Second Appellate District, Division Two.
    October 10, 1933.]
    G. GUARDIA, Respondent, v. CHARLES G. JOHNSON, as State Treasurer, etc., et al., Appellants.
    
      IT. S. Webb, Attorney-General, and H. H. Linney and John L. Flynn, Deputies Attorney-General, for Appellants.
    Gordon A. Goodwin for Respondent.
   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 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.  