322 A.2d 320 (Me. 1974), Berry v. Daigle

Citation322 A.2d 320
Opinion JudgeDELAHANTY,
Party NameHenry N. BERRY, III v. Gerald E. DAIGLE, Tax Assessor for the Town of Cape Elizabeth and State of Maine, and State of Maine, Defendant-Intervenor.
AttorneyHenry N. Berry, III, County Atty., in pro. per. Charles P. Barnes, II, Portland, Waldemar G. Buschmann, Asst. Atty. Gen., Bureau of Taxation, Augusta, for defendant-intervenor.
Judge PanelBefore DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.
Case DateJuly 12, 1974
CourtSupreme Judicial Court of Maine

Page 320

322 A.2d 320 (Me. 1974)

Henry N. BERRY, III

v.

Gerald E. DAIGLE, Tax Assessor for the Town of Cape

Elizabeth and State of Maine, and State of Maine,

Defendant-Intervenor.

Supreme Judicial Court of Maine.

July 12, 1974

Page 321

[Copyrighted Material Omitted]

Page 322

[Copyrighted Material Omitted]

Page 323

Henry N. Berry, III, County Atty., in pro. per.

Charles P. Barnes, II, Portland, Waldemar G. Buschmann, Asst. Atty. Gen., Bureau of Taxation, Augusta, for defendant-intervenor.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.

DELAHANTY, Justice.

On report from the Superior Court (Cumberland County), this case concerns the constitutionality of the 1972 poll tax 1 levied on the Plaintiff by the State of Maine in the person of the Defendant, tax assessor for the Town of Cape Elizabeth, wherein the Plaintiff resides and was assessed.

The essential facts of this case are few and simple. Pursuant to 36 M.R.S.A. § 1381, the tax assessor for the Town of Cape Elizabeth assessed a poll tax for the year 1972 upon Mr. Berry, who was a male resident of Cape Elizabeth between the ages of 20 and 70. Mr. Berry paid the poll tax but wrote a letter to the tax assessor stating that the tax was paid under protest in order to obtain a driver's license under the provisions of 29 M.R.S.A. § 584. 2 On October 9, 1972, the Plaintiff applied for an abatement of the three-dollar 1972 poll tax on the grounds that such an 'assessment is arbitrary and discriminatory and violates (his) right to equal protection under the 14th Amendment to the United States Constitution.' In a letter also dated October 9, 1972, defendant tax assessor denied the request for an abatement.

Following the denial of abatement, the Plaintiff filed his complaint in the Superior Court. The complaint was brought under the provisions of 36 M.R.S.A. § 845-appeal to the Superior Court from a tax assessor's denial of abatement. In addition to seeking an order of abatement, the Plaintiff also seeks declaratory relief pursuant to 14 M.R.S.A. § 5951 et seq. to establish the constitutionality of the tax and the relative rights of the parties.

The State of Maine was permitted to intervene as a party-defendant by the authority contained in 14 M.R.S.A. § 5963

Page 324

entitling the Attorney General to be heard if declaratory relief is sought and a statute is alleged to be unconstitutional. The report came to this Court on an agreed statement of facts. 3 During the pendency of this case and after its report by the Superior Court on February 6, 1973, the Legislature repealed the poll tax. Act of March 13, 1973, c. 66, § 18, 1973 Laws of Maine. The provisions of repeal expunged every vestige of the poll tax from the effective statutes of Maine.

The joinder of claims for abatement review and declaratory relief is permissible in the same proceeding. Similar joining of claims for relief is an established practice in our courts. Maine Merchants Assoc., Inc. v. Campbell, Me., 287 A.2d 430 (1972) (claims for injunctive, declaratory and Rule 80B relief sought against Banking Commission); cf. Perkins v. Warren, Me., 247 A.2d 97 (1968); Northeast Shoe Co. v. Industrial and Recreational Finance Approval Board, Me., 223 A.2d 423 (1966); Parsons v. Chasse, 159 Me. 463, 195 A.2d 72 (1962). Furthermore, the Court may grant declaratory relief, when it is appropriate, either as an original matter or to implement or assist a decision reviewing the action taken by an administrative body. See Field, McKusick, and Wroth, Maine Civil Practice § 80B.2. We therefore consider independently the Plaintiff's cause of action as it relates to the request for abatement and declaratory relief.

Remedy by application for abatement of taxes is not available where an entire assessment is alleged to be void or the taxing authority is challenged as invalid. Talbot v. Inhabitants of Wesley, 116 Me. 208, 100 A. 937 (1917); Herriman v. Stowers, 43 Me. 497 (1857). The abatement remedy is available only for overtaxation obtained by the operation of a lawful Where property assessed was overvalued or an assessment of property was discriminatorily excessive, recourse by application for abatement to the tax assessor is the proper and logical means to achieve a reconsideration of the assessor's prior determination. Abatement, which is always initially requested from the assessor, is restricted to the issue of over-taxation. Perry v. Inhabitants of Town of Lincolnville, 149 Me. 173, 99 A.2d 294 (1953); see Kittery Electric Light Co. v. Assessors of Town of Kittery, Me., 219 A.2d 728 (1966); Maine Consolidated Power Co. v. Inhabitants of Town of Farmington, 219 A.2d 748 (1966); Inhabitants of Bucksport v. Swazey, 132 Me. 36, 165 A. 164 (1933); Cumberland County Power and Light Co. v. Inhabitants of Town of Hiram, 125 Me. 138, 131 A. 594 (1926); Shawmut Mfg. Co. v. Town of Benton, 123 Me. 121, 122 A. 49 (1923); Penobscot Chemical Fibre Co. v. Inhabitants of Town of Bradley, 99 Me. 263, 59 A. 83 (1904); Gilpatrick v. Inhabitants of Scaco, 57 Me. 277 (1869). The failure of an assessor to grant an exemption is properly included within that category of over-taxation subject to review by a proceeding for abatement. This is so even where the entire tax obligation is challenged as being the product of an assessment on exempt property or polls. Depositors Trust Co. v. City of Belfast, Me., 295 A.2d 28 (1972); Holbrook Island Sanctuary v. Inhabitants of Town of Brooksville, 161 Me. 476, 214 A.2d 660 (1965); City of Lewiston v. All Maine Fair Association, 138 Me. 39, 21 A.2d 625 (1941).

Where a petitioner seeks to recover moneys paid for an allegedly unlawful and therefore invalid tax, he may not proceed by an action for abatement of the tax, which is available only to consider the excessive imposition of an otherwise lawful tax. The Plaintiff's attack on the constitutionality

Page 325

of the former poll tax statute was an improper basis for a claim of abatement, and such action is ineffective to obtain a ruling on the constitutionality of the now repealed tax statute.

We next examine Plaintiff's request for declaratory relief. His complaint seeks not only a declaration as to the constitutionality of the tax and licensing statutes, but also 'such other and/or further relief as the Court deems just.' In light of the Appellant's argument, we treat the pleadings as seeking an order for refund of the poll tax collected from Mr. Berry in 1972 or a declaration of such a right.

This Court has decided that the Uniform Declaratory Judgments Act (codified in Maine under 14 M.R.S.A. § 5951 et seq.) should be liberally construed to allow consideration of the rights of parties relative to the validity or interpretation of statutes. See 14 M.R.S.A. § 5954; Maine Sugar Industries, Inc. v. Maine Industrial Bldg. Authority, Me., 264 A.2d 1 (1970) (declaratory judgment proceeding proper to determine rights of parties under a statutory amendment not yet in effect); cf. King Resources Co. v. Environmental Improvement Commission, Me., 270 A.2d 863 (1970); Jones v. Maine State Highway Commission, Me., 238 A.2d 226 (1968). Accordingly, declaratory judgments have been employed to establish rights in tax cases. Holbrook Island Sanctuary v. Inhabitants of Town of Brooksville, supra (whether property was tax exempt under the statute in question). A proceeding for declaratory judgment may be maintained even though an alternative remedy is available. The action is not contingent on the exclusivity of its remedy. Higgins v. Robbins, Me., 265 A.2d 90 (1970); Maine Broadcasting Co. v. Eastern Trust & Banking Co., 142 Me. 220, 49 A.2d 224 (1946). Therefore, despite the fact that the regular procedure for recovery of taxes invalidly collected was by a common law action in assumpsit for money had and received (now incorporated within the unitary 'civil action' pursuant to M.R.C.P., Rule 2), a declaratory judgment may be issued establishing the legality of the taxing authority and the rights of the parties with respect to the money collected. This position is in concert with the law of the majority of jurisdictions which have enacted the Uniform Declaratory Judgments Act and have considered its use in testing the constitutionality of a state tax. See Annot., 132 A.L.R. 1108; Annot., 11 A.L.R.2d 359.

14 M.R.S.A. § 5954 allows for both a determination of the validity of a questioned statute and a...

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44 practice notes
  • 381 A.2d 633 (Me. 1978), Desmond v. Persina
    • United States
    • Maine Supreme Judicial Court of Maine
    • January 5, 1978
    ...claim of right buttressed by a sufficiently substantial interest to warrant judicial protection." Id. at 723; Berry v. Daigle, Me., 322 A.2d 320, 326 (1974). Thus, the plaintiff's available relief under the Declaratory Judgments Act, 14 M.R.S.A., §§ 5951-5959, must be in the nature of ......
  • 363 A.2d 724 (Me. 1976), Small v. Gartley
    • United States
    • Maine Supreme Judicial Court of Maine
    • September 8, 1976
    ...be provided in the Superior Court under the Uniform Declaratory Judgments Act (14 M.R.S.A., §§ 5951-63). See Berry v. Daigle, 1974, Me., 322 A.2d 320; Higgins v. Robbins, 1970, Me., 265 A.2d 90. No such relief was sought in this case. It would seem that under Rule 72(c) the question of the ......
  • 401 A.2d 1008 (Me. 1979), Randlett v. Randlett
    • United States
    • Maine Supreme Judicial Court of Maine
    • May 31, 1979
    ...must establish that his case constitutes an "active dispute of real interests between the litigants." Berry v. Daigle, Me., 322 A.2d 320, 325 (1974); Allstate Insurance Co. v. Lyons, Me., 400 A.2d 349 (1979); Maine Turnpike Authority v. Brennan, Me., 342 A.2d 719, 723 (1975); Shap......
  • 752 S.W.2d 794 (Mo. 1988), 69678, Community Federal Sav. & Loan Ass'n v. Director of Revenue
    • United States
    • Missouri Supreme Court of Missouri
    • May 17, 1988
    ...authority, taxes voluntarily, although erroneously paid, albeit under an unconstitutional statute, cannot be refunded. Berry v. Daigle, 322 A.2d 320, 326-27 (Me.1974); 72 Am.Jur.2d, State & Local Taxation, p. 1074, 1087 (1974), cited in 509 A.2d at 781. Appellants paid the intangible pr......
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43 cases
  • 381 A.2d 633 (Me. 1978), Desmond v. Persina
    • United States
    • Maine Supreme Judicial Court of Maine
    • January 5, 1978
    ...claim of right buttressed by a sufficiently substantial interest to warrant judicial protection." Id. at 723; Berry v. Daigle, Me., 322 A.2d 320, 326 (1974). Thus, the plaintiff's available relief under the Declaratory Judgments Act, 14 M.R.S.A., §§ 5951-5959, must be in the nature of ......
  • 363 A.2d 724 (Me. 1976), Small v. Gartley
    • United States
    • Maine Supreme Judicial Court of Maine
    • September 8, 1976
    ...be provided in the Superior Court under the Uniform Declaratory Judgments Act (14 M.R.S.A., §§ 5951-63). See Berry v. Daigle, 1974, Me., 322 A.2d 320; Higgins v. Robbins, 1970, Me., 265 A.2d 90. No such relief was sought in this case. It would seem that under Rule 72(c) the question of the ......
  • 401 A.2d 1008 (Me. 1979), Randlett v. Randlett
    • United States
    • Maine Supreme Judicial Court of Maine
    • May 31, 1979
    ...must establish that his case constitutes an "active dispute of real interests between the litigants." Berry v. Daigle, Me., 322 A.2d 320, 325 (1974); Allstate Insurance Co. v. Lyons, Me., 400 A.2d 349 (1979); Maine Turnpike Authority v. Brennan, Me., 342 A.2d 719, 723 (1975); Shap......
  • 752 S.W.2d 794 (Mo. 1988), 69678, Community Federal Sav. & Loan Ass'n v. Director of Revenue
    • United States
    • Missouri Supreme Court of Missouri
    • May 17, 1988
    ...authority, taxes voluntarily, although erroneously paid, albeit under an unconstitutional statute, cannot be refunded. Berry v. Daigle, 322 A.2d 320, 326-27 (Me.1974); 72 Am.Jur.2d, State & Local Taxation, p. 1074, 1087 (1974), cited in 509 A.2d at 781. Appellants paid the intangible pr......
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1 books & journal articles
  • Summer 2012 #1. Test Tube Babies Meet Stone Age Statutes.
    • United States
    • Maine Bar Journal Nbr. 2012, January 2012
    • January 1, 2012
    ...proceeding for declaratory judgment may be maintained even though an alternative remedy is available." Berry v. Daigle, 322 A.2d 320, 325 (1974). See the discussion of Beal v. Beal in the text above accompanying n. 16, and the discussion of Adoption of M.A., 2007 ME......