Oswald

This is a proceeding in mandamus wherein the plaintiffs, who are engaged in the business of constructing, paving and repairing public highways, seek to compel the defendants, as state treasurer and controller, respectively, to refund the sum of $128.01, paid to the state under the Gasoline Tax Act, for motor fuel used during the month of January, 1926. The complaint is in two counts. The first count alleges that the “plaintiffs used certain rollers for the purpose of rolling and compressing asphalt and other materials in the construction and paving of certain highways in the state of California and that said rollers used in the construction and paving of said highways were used only on highways that were closed to the public and under repair or construction and that said rollers were not at any time operated or rolled over any highway or portion thereof that was not under construction or repair, and closed to the public.” The second count contained similar allegations as to tractors used in the repair and construction of highways closed to the public.

The trial court overruled a general demurrer to the complaint and to each count thereof. The defendants declined to answer and…