Opinion
Rehearing Denied April 1, 1930
Hearing Granted by Supreme Court April 28, 1930
Appeal from Superior Court, Los Angeles County; John L. Fleming, Judge.
Action by George H. Oswald and John P. Oswald, a copartnership, doing business under the fictitious name of Oswald Brothers Paving Company, against Charles G. Johnson, as State Treasurer of the State of California, and another. From an adverse judgment, the defendants appeal.
Reversed COUNSEL
U.S. Webb, Atty. Gen., and John L. Flynn, Deputy Atty. Gen., for appellants.
George De Lany Blair, of Los Angeles, for respondents.
OPINION
BURNELL, Justice pro tem.
The action resulting in the judgment from which this appeal was taken was brought against the state treasurer and the state controller to obtain reimbursement of gasoline taxes paid by the plaintiffs on fuel used in the operation of certain rollers and tractors during the month of January, 1926. The complaint alleged that in the operation of their business of constructing and paving highways in the state of California the plaintiffs used certain rollers and tractors propelled by gasoline, but which "were not at any time operated or propelled over any highway or portion thereof that was not under construction or repair, and closed to the public." To this complaint the defendants interposed a general demurrer, which was overruled, and upon their failure to answer the judgment from which they appeal was taken against them.
The only question presented for our consideration is whether or not the complaint set up facts sufficient to constitute a cause of action for a refund of taxes within the purview of section 11 of the Gasoline Tax Act (St.1923, p. 571). That section, as amended in 1925 (St.1925, p. 660), and as it stood at the time this action was commenced, provided that any person who should "buy and use any motor vehicle fuel for purposes other than in motor vehicles operated, or intended to be operated upon the public highways of the State of California or export the same for use outside of this state," or who should "buy any motor vehicle fuel and use the same exclusively in the transportation of rural free delivery mails," and who should have paid the tax on such fuel "either directly or to the vendor from whom it was purchased, or indirectly by the adding of the amount of such tax to the price of such fuel," should "be reimbursed and repaid the amount of such tax paid by him" upon presenting to the state controller "an affidavit accompanied by the original invoices showing such purchase," stating "the total amount of such fuel so purchased and [that] the same has been used by said consumer for the transportation of rural free delivery mails or for uses other than in motor vehicles operated upon any of the public highways in the State of California."
That the rollers and tractors mentioned in the complaint are "motor vehicles" is not questioned, the Gasoline Tax Act itself defining the term "motor vehicle" as including "every vehicle operated upon the highways of this state which is propelled by the use of motor vehicle fuel," while the latter term is defined as including gasoline as well as other fuels. That the vehicles in question were operated upon highways is alleged in the complaint. The theory of the respondent plaintiffs is that they are entitled to the refund because their vehicles were "used in the construction and repair of highways while such highways were closed to public use."
The section of the statute relied upon in instituting this action provided, in effect, for an exemption from the tax imposed upon every gallon of motor vehicle fuel distributed (save in original packages imported into the state) throughout the state of California. If the plaintiffs were entitled to a refund it could only be because the fuel used by them and on which they had paid the tax was used in a manner or for a purpose clearly falling within one of the exemptions specifically included in the section. It is a firmly established principle of law that one who claims the benefit of an exception to or exemption from a law providing for taxation must affirmatively show that he comes within a class specifically made exempt from such taxation. Cottle v. Spitzer, 65 Cal. 456, 4 P. 435, 52 Am.Rep. 305. The only exemption specified by the Gasoline Tax Act which could possibly apply to the plaintiffs is that as to motor vehicle fuel used "for purposes other than in motor vehicles operated, or intended to be operated upon the public highways of the state of California." But that exemption is inapplicable because it contains no qualification based upon the condition of highways as open or closed to general use. If the fuel was used in the operation of such vehicles upon such highways, it is not exempt from the tax, for there is no language in the act indicating expressly or even impliedly that for the purposes of the act highways under construction or repair, and for that reason closed to public travel, shall be deemed to have lost their character as public highways while so closed; nor does any law, statutory or otherwise, to which our attention has been called so provide. The rule that a taxing law is to be construed strictly "extends to exemptions, as well as impositions" (Estate of Bull, 153 Cal. 718, 96 P. 366), and we cannot read into the act any extension of the exemptions therein specifically provided.
The complaint, which alleged that the vehicles belonging to the plaintiffs were propelled by gasoline and were operated on and over highways in this state, failed to state a cause of action for a refund of the tax paid on the fuel so used, and the demurrer should have been sustained.
Judgment reversed.
We concur: CRAIG, Acting P.J.; IRA F. THOMPSON, J.