On rеport 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. § S84. 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 Superi- or 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 *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3 During the pendency of this case and after its report by the Superior Court on February 6, 1973, the Legislature repealed the poll tax.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.,
Remedy by application for abatement of taxes is not avаilable where an entire assessment is alleged to be void or the taxing authority is challenged as invalid. Talbot v. Inhabitants of Wesley,
Where a petitioner seeks to recover moneys paid for an allegedly unlawful and therefore invalid tax, he mаy 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 con *325 stitutionality 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.,
14 M.R.S.A. § 5954 allows for both a determination of the validity of a questioned statute and a declaration of rights, status and other legal relations thereunder. The Act has also been found to allow such coercive relief as might be found appropriate. Reed v. State, Me.,
Although the Declaratory Judgments Act expands the range of available relief, it does not relax the requirements of justiciability necessary to present the Cоurt with a judicable controversy. A declaratory judgment action will not he entertained where the questions propounded by the parties no longer present the Court with an active disfrute of real interests between the litigants. Lund ex rel. Wilbur v. Pratt, Me.,
The Declaratory Judgments Act does not create a new cause of action; it merely authorizes a new form of relief. It is an essential condition of the right to invoke judicial relief that the plaintiff have a protectible interest. Under declaratory procedures, the plaintiff must have an established legal interest. No new. claim of right is created by the availability of declaratory relief. To establish a justicia-ble controversy proper for a declaratory judgment, the complainant must establish a claim of right buttressed by a sufficiently substantial interest to warrant judicial protection. Jones v. Maine Statе Highway Commission, supra; Borchard, Declaratory Judgments p. 48.
We look to the Plaintiff’s declaratory judgment action to determine if he has established an adequate claim of right to support the granting of judicial relief, and whether he still has a substantial interest in that claim. To prevent mooting of the question, due to the interim repeal of the poll tax statute, the Plaintiff must prove a right to the recovery оf the money paid under the 1972 poll tax. Absent the right to a refund, a declaration as to the constitutionality of a repealed tax statute would involve a moot issue. Where a party is subject to no future injury and has suffered no legally compensable or remedial loss, the courts will not act to resolve a dispute, as such action would be without practical effect.
To support his claim for declaratory relief, the complainant must comply with all requirements necessary as a condition of raising his grievance. There must be a definite assertion of legal rights on the one side and a positive denial thereof on the other. In the subject case, the Plaintiff has failed to meet the prerequisites necessary to support a right to the refund of his poll tax.
Under Maine law, where a person has paid the amount of taxes assessed upon him, he can not recover it back upon the ground that the assessment was illegally made if there be no proof that he was compelled to pay the same, or any portion thereof, by duress of his person or seizure of his property, or that any part of it was paid under protest and to avoid such arrest or seizure. Smith v. Inhabitants of Readfield,
*327 As the tax was not paid under legally cognizable duress, the Plaintiff has no entitlement to its refund, despite the possible merits of his case relative to the constitutionality of the repealed statute. To present us with a justiciable question, the complainant must show a legal right which adheres to him and which the Court may act to protect. To perfect that claim of right, he must satisfy the prerequisites of entitlement. Having failed to do so, he may not obtain a decision on the propriety or validity of governmental action.
Had the poll tax statute not been repealed, the continuing and future threat of injury would have constituted sufficient interest to have supported a declaratory judgment action without a showing of entitlement to the return of sums already collected. In thе present case, the threat of further unlawful taxation has been extinguished, and the only continuing interest of the Appellant is dependent on his having a present right subject to judicial relief. No such right exists.
It may be further noted that the proper party-defendant for the recovery of an unlawful tax would have been the tax collector or the municipality, whichever had possession of the funds at the commencement of the suit. As assessor, Mr. Daigle did not have possession of the money and, therefore, could not have returned the funds.
See
14 M.R.S.A. § 5963;
cf.
Dillon v. Johnson, Me.,
There is no statutory basis in Maine for an action to recover money paid under an allegedly unconstitutional tax. 36 M.R.S.A. § 504
5
allows for an action to recover tax “money not raised for a legal object,” but the provision is inapplicable to a situation as in the subject case. First, § 504 allows for recovery where the
object
of taxation is illegal. Here, the object of taxation is not alleged to be unlawful, but rather the tax itself is alleged to be invalid. A predecessor statute to § 504 containing the same provision was considered by this Court in Gilman v. Inhabitants of Waterville,
*328
. The failure of the Appellant to establish a claim of right for the recovery of the collected tax leaves his action a mere request for a declaratory judgment on the past validity of the poll tax statute. Since the action has lost its controversial qualities by reason of legally valid supervening circumstances which deprive the parties of a legally cognizable interest in the outcome, the action is moot and therefore inappropriate for judicial consideration. Good Will Home Association v. Erwin, Me.,
Democratic government affords alternative means for public grievances to find expression and achieve resolution. Recourse to the courts is but one avenue by which citizens can secure protection of their civil rights and correct the abuses of state action. The legislature is equally qualified and competent to respond to legitimate public interests for remedy of governmental wrongs. Indeed, the legislative branch has much broader discretion than the judicial branch in restricting or extending the range of state activity.
The Maine Legislature acted within its authority in repealing the Maine poll tax. The repeal effectively extinguished the substantive issues contained in the subject matter of this case, and made unnecessary additional comment on the merits by this Court.
The entry will be:
Report discharged.
Complaint dismissed.
Notes
. At the time of the assessment of the tax in the instant ease, the poll tax statute, in pertinent part, read as follows:
A poll tax of $3 shall be assessed upon every male resident of the State between the ages of 21 and 70 years, ... in the place where he resides on the first day in each April, unless he is exempted therefrom by this Title.
36 M.R.S.A. § 1381 (Repealed, effective March 13, 1973).
. Plaintiff also challenges the constitutionality of the ancillary requirement that a valid poll tax receipt for the current year be presented as a prerequisite for issuance of a driver’s license. 29 M.R.S.A. § 584 (repealed 1973). Since the operation of this requirement presupposes the validity of the poll tax, we see no need for separate reference, and hereafter our discussion оf the poll tax subsumes such ancillary uses of the tax.
. Although the parties and presiding Justice characterized this report as being pursuant to Rule 72(a), the parties stipulated to an agreed statement of facts relative to the report of the action. Therefore, the case is properly reported under Rule 72(b) of the Maine Rules of Civil Procedure.
. In Atchison, T. & S. F. R. Co. v. O’Connor,
. “If money not raised for a legal object is assessed with other moneys legally raised, the assessment is not void; nor shall any error, mistake' or omission by the assessors, tax collector or treasurer render it void; but any person paying such tax may .bring his action against the municipality in the Superior Court for the same county, and shall recover the sum not raised for a legal object, with 25% interest and costs, and any damages which he has sustained by reason of mistakes, errors or omissions of such officers.” 36 M.R.S.A. § 504.