Mayor of Forest Heights v. Frank

MAYOR AND COUNCIL OF FOREST HEIGHTS et al. TILLIE FRANK et al. Term, September

[No. 1980.]

Decided October 1981. by Mayor and council of filed Motions for reconsideration Mayor Heights Council of Forest and and Mount Rainier 6,1981, denied November respectively; 4 and November 1981. J., and Smith, argued cause was before Murphy, C. JJ. Rodowsky,

Digges, Eldridge, Cole, Davidson Holland, Jr., Raymond McDonough, J. Kent J. Morris Schmuhl, Topf, McDonough & whom were P.A. and Reichelt, brief, Nussbaum, Brown & on the for Topf appellants. George’s County, Maryland

Amicus curiae brief Prince filed, Ostrom, Attorney, Robert B. County Michael O. Connaughton, County Deputy Attorney, Steven M. Gilbert Stokes, Jr., Robert N. Associate Attorneys, on the brief. Lechter,

Kenneth A. with whom were Michael J. Graham brief, on the appellees. and Fisher & Walcek Maryland Municipal Amicus curiae brief of League, Inc. filed, Roger on the W. Titus brief. J., the opinion

Eldridge, delivered Court. Murphy, J., C. and JJ., J., and Digges, dissent. C. filed Smith Murphy, a dissenting opinion page infra, at in which Smith and JJ., a part. J., concur in Digges, filed dissenting Smith, opinion infra, at page J., in which Digges, concurs. Digges, J., filed dissenting opinion a 368 infra. page at

The issues in possible this case arise a because of conflict between a licensing ordinance of a chartered and a prohibition on the licensed activity by two incorporated the county.1 within question The threshold is whether and the municipal ordinances are in are, direct they conflict. If we must how decide the conflict to be light resolved in provisions Maryland Maryland Constitution and relating Code to chartered counties and to incorporated municipalities. plaintiffs applied Bessie Frank and Ristick Delors for granted

and were George’s County licenses from Prince to practice fortunetelling at specified locations within the county, pursuant to Subtitle Division of the Prince county” 1. The county” terms "chartered or opinion "home rule in this adopted refer to a XI-A of the municipality pursuant which has a home rule charter to Art. "municipality” Constitution. The term refers to a of, meaning to, subject within the Art. XI-E of the Maryland Constitution. specifies The license issued to Ristick County Code. George’s Mount City limits of corporate a location within to Bessie in the license issued Rainier; contained the location Both Forest Heights.2 of Forest the Town Frank is within ordinances had enacted Rainier and Mount Heights respective within their fortunetelling prohibiting at commencing business to prior plaintiffs’ limits by Bessie filed complaint bill of locations.3 The specified Court in the Circuit Frank, Delors Ristick Tillie Frank and declaring requested judgment a County, George’s for Prince Rainier and Mount Heights Forest with Prince in direct conflict fortunetelling are prohibiting are, therefore, Subsequently, void. County law and George’s to the action party made a County was George’s Prince Act, Maryland Code Declaratory Judgment pursuant property- specified refers to in Bessie Frank’s license 2. The address Frank, use-and-occupancy plaintiff in whose name Tillie owned County Department George’s of Licenses permit issued the Prince was and Permits. Code, Heights, Forest took Town of 4.1 and 4.2 of Ordinance 3. Sections August 1979: effect Fortunetelling "Section 4.1: unlawful, hereby prohibited within the Town and it is It shall be future, predict any person attempt for to tell fortunes or for pay, ball, crystal palmistry, compensation, means of donation or charms, cards, talismans, potions, spirits, medium-ship, means, magic nature, tea-leaves, any or other similar kind or any way include except or interfere with the exercise nothing herein shall be construed spiritual any religious or religion. practices or bona fide church Penalty 4.2: “Section Article, upon any provision of a misdemeanor Any person violating of this subject conviction, guilty to fine be shall ($100.00), imprisonment not not to exceed 30 One Hundred Dollars to exceed days imprisonment. Á conviction or both fine to a conviction for a continuation one offense shall not be a bar such offense any succeeding subsequent conviction.” to the first or 19,1980, specified §in 4.2 increased to a sum the fine was Effective March not to exceed from $500.00, possible imprisonment term of was raised and the thirty ninety days. City Rainier of the of Mount Section 10-120 of the Code of Ordinances reads: accept any any person to demand or "It shall be unlawful for forecasting foretelling gratuity the future or remuneration or cards, palm pretending or for the future to forecast or foretell scheme, corporate device, practice reading, any practice or or to other City.” phrenology of the within the limits 3-405(b) (1974,1980 Vol.), § Repl. of the Courts and Judicial Proceedings Article. County determined George’s

The Circuit Court for Prince power had the Heights that Forest and Mount Rainier authority respective under their charters and the federal legislation prohibiting and state constitutions to enact court, The foretunetelling municipal within boundaries. however, prohibiting municipal held that with the Prince foretunetelling were direct conflict George’s County plaintiffs which the were law under specific licensed to tell fortunes at locations within the limits §§ municipalities. of the two The court thus declared 4.1 and Code, Heights 4.2 of the Forest Ordinance 10-120 of Rainier, the Code of Ordinances of Mount to be void. The two municipalities appealed Special to the Court of Appeals, and this Court granted petition prior their for certiorari action the intermediate appellate court.

In challenging declaratory judgment, Heights Forest First, and Mount arguments. Rainier make three they contend that there is no direct conflict between the licensing provisions George’s Subtitle Division of the Prince County Code and municipal the two position ordinances. This is upon premise based county that the entirely scheme is restrictive and that the municipal legislation merely represents permissible extension of this purpose. The argument second that, even if there would otherwise be a conflict between the county law and the ordinances, municipal county law has no application within the municipalities. They that, two contend under Art. 3,§ Maryland Constitution, legislation of a chartered county has no effect whatsoever within municipal if limits legislation concerns a matter on which the municipality authority Third, legislate. that, municipalities argue if conflict, there is a direct if both the and the municipalities have to enact legislation limits, that is effective within then the municipal prevail. ordinances should hand, there is a plaintiffs, on the other insist law, to which pursuant direct conflict between the they obtained their licenses to engage in fortunetelling in Forest Heights Rainer, and Mount respectively, and the municipal ordinances which completely prohibit them from fortunetelling at specified the locations county They licenses. argue further that county legislation applies throughout the entire county and that authority county of a supersedes that of a municipality, thereby rendering prohibitory ineffective the ordinances of Heights Forest Rainier.4 and Mount In keeping with this Court’s policy established of not deciding questions necessary, constitutional unless Simms State, 712, 725, (1980), 421 A.2d 957 and cases cited, there we shall county first consider whether the law conflict, ordinances irrespective are county the reach of law or which given law should be effect in the event of conflict.

I In arguing licensing statute does not ordinances, conflict with the municipal the municipalities claim merely that their represent higher degree regulation, i.e., prohibition, than already restrictive support law. In interpretation their of the county restrictive, law as permissive, rather than municipalities point to many requirements (e.g., law records) fingerprints, photographs, provision of criminal quantitative limits contained (e.g., therein no more than one per eighty residents, license thousand with the total number of licenses issued not to eight, exceed and not more than two licenses per family). The municipalities conclude ordinances, that their completely prohibiting fortunetelling boundaries, within municipal "clearly are consistent” with the "limiting and restricting county’s nature” of the licensing 4. plaintiffs George’s County Neither the challenge nor Prince the circuit holding court’s that the were authorized to enact ordinances prohibiting the assume, fortunetelling. the business of arguendo, We shall ordinances are within municipalities. "carry logical idea to the next statute, simply limitation.” will construe courts reasonably possible,

Wherever avoids principle This no conflict. that there is enactments so Annapolis See law or the other. invalidate one the need to 383, 391, A.2d 1080 Co., 396 284 Md. Annap. Waterfront Elections, Md. 273 (1979); Sup. Bd. of Wilson v. Walker, Dir., (1974); Dept of F. & P. v. Acting

328 A.2d 305 (1974). have also 711, 718-719, We 319 A.2d 271 Md. justified be unit governmental a recognized that throughout the in effect policy than the going., further v. Sitnick City In of Baltimore governmental unit. broader (1969), the Court 255 A.2d Firey, & a Baltimore a conflict between there was considered whether $1.25, wage of minimum City establishing ordinance minimum taverns, setting the and a State law applicable to This Court $1.00, exempting taverns. specifically rate but at the harmonious with City law was held that the Baltimore lent law, law provisions and that State supplementation themselves to the "characterization In differences.... law, than irreconcilable the State rather provisions conflicting regulations none of the of the listed City wage a minimum which is law does it authorize law, provided by exempt lower than that the State nor does it law; think employees included under the State we City norm to measure the law crucial which must be used regarding any Id. at 324-325. conflict the statute.” argument case, municipalities’

Turning present merely supplement Code, does not withstand provided restrictions law, county nor the the text of the scrutiny. Neither licenses, issuing employed by the practices merely restrictive that the law is support interpretation an 5-155(e) Section not an affirmative authorization. required the "license” George’s County Code defines Prince by the Director or his certificate issued "[a] designee person enabling person engage to a . . . such practices ....” fortunetelling business of and similar (b) (2) that an (Emphasis supplied.) requires 5-157 Section application for fortunetelling license contain a "legal description specific address location used or proposed to be used in the operation or business of practices Thus, and similar . . . fortunetelling the County Code would, issued, indicates that a license if "enable” a practice licensee to fortunetelling "specific at the location” listed in the application. This is precisely practice employed by George’s County. Prince Pursuant applications filed county, with the Bessie Frank and Delors licenses, Ristick were issued each of which "authorized [her] to practice fortunetelling” at a street address. specified address in Bessie Frank’s license is within the municipal limits Heights; of Forest the license issued to Ristick specifies a location within Mount Rainier. In light of the language of statute, licensing "enables” one to practice fortunetelling, and the licenses actually issued, which "authorize” one to tell fortunes at a location, county merely we cannot view the law as providing practice fortunetelling restrictions on the or as being Instead, neutral with respect practice. to the the language County county of the Code indicates that a license provides affirmative authorization to tell fortunes. It is in prohibition direct conflict with the on fortunetelling contained in the municipal ordinances at issue here. City

This view is consistent with the in holding Baltimore Firey, supra, v. Sitnick and 254 Md. 303. As discussed, previously this Court in Sitnick acknowledged the authority of localities to enact laws certain areas that supplemented higher Nevertheless, the law. the Sitnick court political reiterated the rule that "a subdivision prohibit what the by general public State permitted law has ____” Annapolis Co., Id. at 317. also v. Annap. See Waterfront supra, recently 284 Md. at in which we pointed out that a " conflict exists a municipal 'prohibits something where law ” permitted by legislature.’ case, In the instant language County Code, and the licenses issued to, pursuant to its provisions, expressly permit each licensee engage practice of fortunetelling specified at a way location. There simply municipal is no fortunetelling can be practice prohibiting county’s authorization "supplemental” considered business. fortunetelling engage State constitutional we must consider the Accordingly, municipalities. by the questions raised

II that, contend Mount Rainier Heights Forest inconsistency between any regardless apparent ordinances, inconsistency is such law a home rule an enactment meaningless because municipality in the incorporated an no effect within if is matter which county, subject of the law legal for regulate. The basis municipality is authorized to XI-A, argument is authority and provides the Article Constitution. rule home organization for the creation and mechanism powers given limits the George’s, such as Prince counties (§ added): 3, emphasis such counties as follows herein shall be nothing "[P]rovided that contained County empower construed to authorize laws or any in this State enact Council of town, any village, or regulations incorporated covered County, on matter municipality in said town, village or granted to said municipality . .. .” that, holding court’s party challenging

No the circuit action, the county municipalities the had the absence of fortunetelling. authority prohibit to under their charters argue that the Heights Thus and Mount Rainier Forest Prince renders above-quoted language constitutional within all George’s County’s licensing ordinance ineffective towns, villages and county’s incorporated of the charters, authority, their municipalities having under has not heretofore prohibit fortunetelling. This Court county of a council’s to enact laws addressed the issue municipalities of that incorporated effective within the county.5 county the law of the argument

The entirely boundaries is based effect within has no XI-A, county Art. that the council language of upon 116, 131-135, Ass’n, 377 A.2d Md. Drink In Mont. Co. v. Soft 5. that, position under the (1977), City Rockville took of 486 prohibition legislation XI-A, county’s could "revenue” a home rule in Art. apply legislation "regulatory” not could apply municipalities that its but City argued municipalities. that a county’s limits of the within the Montgomery beverage imposing County a tax on non-returnable law that, applied in the "regulatory” the ordinance and because was containers XI-A. discussion municipalities, holding regarding under Art. Without it was void accepting purposes scope and this Court Rockville, rejected argument drawn case the distinction that of a tax is "a imposition recognizing that the void. While ordinance was regulating the use of non-returnable recognized mode (Id. 132), was a ordinance beverage held that at we containers” that, drawn under the distinction and even "revenue” measure Rockville, municipalities. validly applicable in was XI-A scope in Art. dealing precise of the restriction Although municipality, the Court of law to a relating applicability of App. County, Md. Arundel Special Appeals Anne in Griffin v. apply (1975), to a 135-137, restriction did not held that the A.2d 612 collecting property levying of real county taxes. providing and for the ordinance historically Maryland, connection, noted that it should be In this source, although to a significant regarded revenue as a licenses have been Report See, e.g., of the years. Third Interim in recent lesser extent (the "Sobeloff Organization the State Administrative Commission on Commission”) Report 1952), 7-8, 19-23; pp. on Licenses Commission”) (August Interim (the Survey Maryland of 1949 "Case Commission Tax Maryland 1950), 3-7; (February pp. Report Commission of the Commission”) (the (September "Sherbow Distribution of Tax Revenues 113-120; Maryland Commission of 1946), 1939 Report Tax Revision pp. 1941), 92-109; Report of for the Revision (January pp. the Commission City of Baltimore System the State of of the Taxation (October divided licenses into two generally reports study 1913), have commission 349-362.These pp. namely categories, or "revenue "business licenses” Licensing "regulatory the other. licenses” on hand and licenses” on the one requirements measures, essentially category revenue viewed as the first are "designed insure minimal "regulatory are licenses” whereas seeking part of those proficiency and character on standards of engage directly trades, professions affect occupations in certain Commission,” supra, health, Report safety of the "Case and welfare.” p. 2. case, adopted it will be interpretation XI-A in this light of Art. In language prohibitory of Art. unnecessary XI-A ordinances, and, whether the for us to consider "regulatory” contemplates between “revenue” a distinction George’s does, the Prince if it whether year, every ordinance, is a fortunetelling requiring $250.00 fee of a license "regulatory” measure. "revenue” or a

341 town, village or incorporated "for legislate shall not however, require the does not language, This municipality.” quoted municipalities. by urged construction namely that way, a second § construed of 3 can be language a only for or within enact laws effective county cannot elsewhere not effective municipality and municipality,” any ... "for phrase The use of the county. the correct one. construction suggests that this second XI-A and the Art. Moreover, purpose of light of the result, that the contrary we believe of a potential effects reasoned better represents second construction approach. proposed was Maryland Constitution

Article XI-A of the by and ratified Maryland of 1914 the Laws of Ch. 416 of has As this Court in November 1915. the voters of this State was the times, this article purpose behind many stated from the State lawmaking of local transfer Ritchmount county governments. legislature (1978); Board, 48, A.2d 523 Md. 388 Partnership v. 283 312 Md. Funding, 270 County Council v. Investors Greenhalgh, 253 (1973); League v. A.2d 225 Mont. Citizens (1969); Montgomery 151, 160, 242 Scull v. Md. 252 A.2d (1968); v. Citizens, 271, 274, A.2d 92 State 249 Md. 239 (1927). XI-A, Stewart, 419, 422, A. 39 Article to enact legislative power § "full” gives council express grant covered local laws on all matters XI-A, Corp., § 2. Cheeks v. Cedlair powers under Art. (1980); 595, 608-609, Mont. Citizens Md. 415 A.2d 255 Subsequent to 253 Md. at 160. League Greenhalgh, supra, v. XI-A, Art. county’s organization under authority to enact longer no the constitutional by the any subject covered public local laws for the rule Md. Const. express powers granted to home counties. Rather, in Mont. Citizens 4. as this Court stated 160: League Greenhalgh, supra, 253 Md. at legislature purpose "The and intent by Art. called for supplying implementation act was passage express powers XI-A the legislature give to take from the laws, the exclusive enact delegation power, commonly reasons for this rule, far called home were first to reduce as possible of unacted in log jam the on measures the days legislative late session in Annapolis the passage which had caused laws that had not scrutiny and, received careful due consideration second, permit legislation 'to local to be enacted solely by directly by those affected it without representatives interference from of other sections ” added.) (emphasis State.’ Thus, subsequent county’s organization to a as an Art. XI-A county, only home rule county the council is authorized to public throughout county. enact local laws effective of incorporated municipalities provided are for in Maryland Art. XI-E of the Constitution and Art. 23A of Maryland XI-E, §§ the Code. Under 1 and 6 of Art. 23A, of Art. a municipality’s lawmaking powers subject are to all applicable by Assembly, laws enacted including public a local law applicable throughout one county. purpose Since the of Art. XI-A towas transfer the Assembly’s power county General enact local laws counties, Art. XI-A logically councils of home rule it follows that those counties should generally have the same relationship municipalities vis-a-vis their within borders as General would in enacting public have laws in county county in the absence of home rule government. 3,§ If interpretation of Art. urged Court, the municipalities adopted by were this would incongruous result in the whereby municipality situation located in an Art. XI-A greater home rule would have powers than municipality organized in a under wording history Art. XI-A. Neither the nor the of Art. XI-A indicate that such a result was intended. addition,

In legislative history associated with the adoption suggests of Art. XI-E an understanding that home ordinances, rule licensing such as one here in involved, to be effective were and would continue enacted further Legislature unless Art. XI-E of the county law-making power. upon restrictions by the Commission on proposed was Constitution State, known as the Organization of the Administrative proposed its first chairman. The Commission” after "Sobeloff ratified Legislature Art. XI-E was enacted proposing in In what became voters 1954. addition Constitution, made XI-E of the the Sobeloff Commission government proposals respect several other Maryland. changes recommendations Included were have, effect, made all counties "home Art. XI-A that would Report rule” Interim Sobeloff counties. See Second (June 1952), 5-7, addition, 42-49.6 In pp. Commission legislation specifically Sobeloff Commission recommended whereby apply only to license should "[c]ounty authorization municipalities, to areas outside which would incorporated Third Interim of Report have the to set their own fees.” 1952), (August p. (emphasis the Sobeloff Commission added). that, premise on the This recommendation was based restrictions, county legislative absent further home rule in licensing applicable municipalities. ordinances could be Assembly, although adopting The General most other concerning recommendations of the Sobeloff Commission the authority adopt proposed this municipalities, did not authority in upon county legislative restriction municipalities.7

There is another indication of the Sobeloff Commission’s view, apparently Legislature, county the that accepted legislation applicable municipalities would be in under the that, proposed new Art. XI-E. The Commission before it municipality, a county incorporate could area a The county government. need of the approval would recommendation, appears which this Legislature adopted Assembly. adopted by 6. 7. A similar the General These recommendations were not proposal county licensing ordinances to areas of the the to limit county "Case years municipalities outside of had a few earlier been made Licenses, 9-10, Commission,” supra, pp. Report had Interim rejected by Assembly. been the General Vol.), 23A, § (1957,1981 providing: "No Repl. Code provisions corporation shall be created under approval board of specific this subtitle without county county county commissioners or council corporation is proposed municipal which the located.” reasons supplied.) In (emphasis explaining (Second stated Interim provision, the Sobeloff Commission Report, supra, p. emphasis supplied): authority incorporations to veto would be "The very a stake county since it has definite given of a new town. The creation of incorporation in the collections; may its tax unit affect taxing a new county may services then duplicate town attempt get a lower tax rate town county service; in return for withdrawal ” disputes may arise jurisdictional can be furnished within idea that services arise, may municipality jurisdictional disputes and that be laws could understanding indicates an also applicable in on matters which would municipalities authority municipalities. fall within the 3,§ in Art. to mean Construing prohibition legislation just for one county may a home rule not enact legislation countywide but that its particular municipality, throughout in all operate equally transferring county, purpose is with Art. XI-A’s consistent Legislature from the State lawmaking power analogous This result appropriate county council. XI-E, prohibits limitation of Art. in a

Assembly enacting legislation from effective a all within municipality applies municipalities unless it to legislation desire avoid class.8 These restrictions reflect a to only specific municipalities. at aimed certain (the of the State Organization 8. on Administrative The Commission Art., XI-E, Commission”), proposed which had its Second "Sobeloff p. 47, analogy prohibitions Report, two and Interim suggested correspond drew an between the wording prohibition changed to the XI-A be that the of of Art. wording upon the XI-E the Art. limitation General XI-A, 3, urged by § of Art. The construction case, have drastic could in the instant municipalities in this State are Many municipalities of the consequences. very few provide are able to units that governmental small county legislation not If to their residents. services villages, they these towns and constitutionally apply within services now many governmental provide would be forced to the services. Some county or do without provided necessary, the small but services involved are ***9 provide in a them.* position are not municipalities simply before us argument Rainier Heights Forest and Mount towns could urged but that such acknowledged problem, authority within county a to exercise by agreement permit constitutionally boundaries. This answer is municipal contend, If, Mount Rainier Heights as Forest and unsound. 3,§ in Art. county contained the restriction on county legislation may apply within means might say or do municipalities, nothing municipality that a authority the State upon could confer specifically Constitution denies. "[tjhis change contemplates no Assembly, alteration pointing out however, Legislature, municipalities.” did not authority enact a The ofcounties over changing wording of Art.. proposed constitutional amendment XI-A restriction. Relationships, City-County in a Maryland Fiscal Commission on 9. 1963, typical

report listed Tawes on December submitted Governor municipality municipal in the State furnished to listed, each of these services set forth which services and first five basic services Of the its own residents. collection, sewer, protection, and namely protection, waste police fire all ofthese furnished supply, only Art. XI-E five of the water services as of 1963. only supplied of these Thirty-two municipalities two Report them; supplied none. services; thirty supplied only and fifteen one of (1963), Relationships City-County Fiscal on Commission 36-41. pp. perform recognized often that counties The General tax rate differentials municipalities, it has authorized services within in cases where governmental municipality "performs services programs.” county governmental services or programs in lieu of similar Apostol Vol.), Anne Arundel (1957, Repl. See 32A. Code (1980). or task County, Various commissions 421 A.2d 582 services, throughout years the matter studied forces have municipality, whether they performed or the whether are performs municipality be mandated when a tax certain services differential should rate doing. necessity for so thereby relieving Report of the Subcommittee study is the 1979-1980 A most recent Study the Task Force Expenditure Patterns of Revenue Structure (December 1980), pp. 45-48. Relationships State-Local Fiscal XI-A, 3,§ therefore, in Art. hold, that the restriction We municipality laws "for” a county may not enact that a not mean that powers, does municipality’s matter within effective legislation county’s general a reflects an intent Rather, restriction municipalities. county may not enact a law rule XI-A home that an Art. or to, municipality for, particular limited solely and had municipality if the the matter. legislate regarding

Ill ordinance is County licensing George’s Prince As the Rainier, and as it and Mount Heights in Forest applicable enacted the two ordinances with the conflicts in the case is whether the final issue municipalities, prevail. municipal or the XI-E Art. XI-A or Art. in either provision There is no the matter of a directly relates to the Constitution enacted county-wide ordinance between a conflict located municipality of a and an ordinance council understandable, county. perhaps This absence is within the XI-E, 6, give §§ 2,§ Art. and as Art. powers authority to determine Assembly broad General long municipalities, as as of chartered counties general are public chartered counties relating enactments relating specifically enactments long laws and as municipalities of the same alike to all municipalities apply by delineating Consequently, class.10 the General municipalities, counties conflicts, to resolve authority by statute Assembly has full generally. specific either in areas Constitution, "General provides that XI-E, § 2 10. corporations law, classify Assembly, by all such shall population....” In based on grouping than four classes them into not more Code, Assembly grouped 23A, all Art. municipalities single class. into a minimized the areas, In certain General conflict, authority delineating the specifically possibility of each respect with to other.11 counties and Moreover, areas, may popularly be in other matters that by actually public general as are controlled viewed "local” Assembly, and the issue of by laws General thus enacted is county municipal and ordinances a conflict between fall within this unlikely Many to arise. "local” licenses category.12 in certain Assembly by legislation

Although the General conflict between has the likelihood of areas reduced municipality, and a chartered falling outside of these nevertheless, respect to matters general forth a areas, expressly set Legislature has prevail in the event of conflict.13 as to shall rule which Vol.) 9(c), (1957, 1981 23A, 19(s),19A(e); See, §§ e.g., Repl. 11. Art. Code Vol.) (1957, 1978 66B, 5.01, 7.03, 66D, 3.01(b), §§ Repl. Art. and Art. Code 7-105, 8-112.1, 3-106, 7-103, 8-112, relating through §§ all to 3-102 planning zoning. and types, category example, 12. For includes for traders of all this licenses auctioneers, tables, boxes, pinball peddlers, hawkers billiard music and devices, machines, vending private machines and amusement other detectives, stables, festivals, riding garages, employment music horse dealers, machinery agencies, trading stamp companies, wholesale farm firms, warehouses, fountains, moving storage dry storage soda and cleaners restaurants, firms, laundries, plumbers, dogs, and construction estate real brokers, junk dealers, surveyors, many types. requirements The and other obtaining by Assembly, for ofthese licenses are set forth the General and all generally state by paid are state the fees the licenses issued officials and are (1957,1979 officials, usually the circuit See Code clerks of the courts. Vol.), licenses, although Repl. designated on a many expressly fees these Art. 56. The for funds,” municipalities, as "state are distributed counties and by Assembly. §! basis Art. set forth in detail the General 3-4. Report Both the on Licenses of the Commission” in Interim "Case Report supra, pp. 9-11, in the Third "SobeloffCommission” and Interim 1952, supra, 4,19-23, providing pp. recommended that the state laws repealed, most of these matter be handled and the ofthe and that the licenses collection fees be by county legislation. municipal These rejected by Assembly. recommendations were the General course, conflict further reduced 13. Of the likelihood of a that, opinion, judicially principle, developed in I this discussed Part reasonably possible, so to avoid wherever courts will construe statutes as setting Maryland principle The in this in the conflict. context of a 74 A. 581 seminal case forth 416-417, State, Rossberg v. ordinance was (1909). noteworthy in to come before this It is that sixteen cases time, involving statute Court since a claimed conflict between state ordinance, harmony be in and a local eleven of the cases. the statutes to Court construed only statutory provision The generally relating to conflicts "county” (1957, between legislation is Code Vol.), 23A, 2, Repl. provides pertinent part (emphasis supplied): body every incorporated legislative

"The State, City, except Baltimore municipality known, general shall have whatever name contrary public ordinances not pass such laws and the Constitution of general they necessary ....” deem County argue plaintiffs George’s and Prince statutory above-quoted phrase "public local laws” body of a legislative provision includes enactments that, therefore, home rule provided that an ordinance of a municipality ordinance of a prevails conflicting over a and Mount county. Heights the Forest located within hand, Rainier, phrase "public contend that the on the other only public those local in the statute refers to laws” by Assembly the itself. laws enacted General Constitution, In Art. XI-A of the light purpose of the of Assembly’s enact power to which was to transfer the General council, county for a public local laws 4, XI-A, public § Art. that "no light the mandate in of Assembly by the General for said local law shall be enacted consistently the County,” ... this has viewed Court Art. local laws” "public enactments of an XI-A as the initially 23A, 2, 1947, being § 14. Ch. 731 of the Acts Art. was enacted 23A, 4, 731, exempted § 1947. 2 of Ch. codified as Art. of certain Prince Section later statute, including municipalities municipalities from the XI-E, 1,§ County. prior George’s Art. of the This was to Constitution, required act in the General relation only municipalities applying municipalities by general alike to all laws enactment, exemption 731 class. its in Ch. Because of earlier date was, course, repealed by exemption 451 of Acts of was Ch. valid. 23A, 1973, subject § 2. Art. This Court and now all are by legislative suggested recognition prompted repeal have the 1973 been Xl-E, 1, exemption § Art. that the was inconsistent with Bowie, 230, 248, City Inn 274 Md. 335 A.2d 679 Constitution. Bowie (1975). v.

349 See, county.15 e.g., Ritchmount "local laws” of Board, 54-58; Partnership supra, v. 283 Md. at Steimel v. Board, 6-8, (1976); 1, Anne Arundel 278 Md. 357 A.2d 386 271, 287, (1976); McDonough, Co. v. 277 Md. 354 A.2d 788 Atty City of Balto., 597, 603-605, v. 274 State’s Md. 337 A.2d (1975); 92 Funding, supra, Council v. Investors 270 413; Md. League Greenhalgh, supra, at Mont. Citizens 253 160; Citizens, Montgomery supra, Md. at Scull v. 249 Md. at 277; Elec., Supervisors Co. Com’rs v. Of 192 Md. (1949). 204-206, long 63 A.2d 735 This was true before 1947 23A, 2,§ Art. of the when Code was by first enacted Stewart, Assembly. General See State v. 152 Md. (1927). 422-424, A.

Moreover, using statutes regard to other state law,” qualification phrase "public without an ordinance phrase Court has construed the to include XI-A legislative body enacted of an Art. subdivision Assembly. as well Herman as an enactment 191, 195-196, Baltimore, v. M. & C. C. Of 55 A.2d (1947) Mayor (holding that an ordinance enacted Baltimore, XI-A City Council of which is an Art. home XI-E, under Art. jurisdiction municipality rule and not a 1, 13, § "public meaning was a local law” within the of Art. Code). Maryland of the This construction is consistent with of the usage phrase by the framers XI-A, In language Constitution. addition to the Constitution, prohibiting Legislature 15. Art. from enacting public setting local laws for a chartered forth the laws, public general distinction between local laws and uses the "public interchangeably. terms provides local laws” and "Local Laws” That section entirety: in its adoption provisions "From and after the of a charter under the State, by City any County of this Article the of Baltimore or of this public by Assembly no local law shall be enacted City County any subject by express powers said granted covered the provided. Any apply as above law so drawn as to to two or geographical more of the subdivisions of this State shall not be Law, meaning deemed a Local "geographical City within term the of Act. The the sub-division” herein used shall be taken to mean any of Baltimore or of the Counties of this State.” cases, See, similarly, phrases interchangeably. e.g., Our Scull v. 249 Md. at 274 with 249 Md. at have used the two (1968) Citizens, Montgomery (compare Md. 249 239 A.2d 92 277). phrase "public local law” elsewhere in the Constitution used clearly by a local ordinance enacted a home includes rule XI-F, jurisdiction. (relating §§ Art. 6 and 7 See code alia, counties, providing, may inter that "a code enact, repeal county” amend or a local law that public (§§ 6)). hand, 3 and On the other when the framers of provisions term "public constitutional intended that the Assembly, law” be limited to of the General enactments they See, clearly e.g., so the qualified language. have Art. XI-F, § (stating part by that "Public local laws enacted Assembly any General under this section Over prevail ...”); public XVI, by local laws enacted the code Art. (a) § (referring "any Public Local Law for one City "passed by or the Baltimore” was Assembly”). General when And intent Constitution was to exclude enactments Art. XI-A law,” "public counties from the it meaning of has been expressly XI-F, § so stated. See Art. 1.

Therefore, when phrase "public local law” is used the Legislature qualification, without and when neither the context legislative nor other indicia of suggest intent meaning, different phrase should be construed include enactments home rule counties under Art. XI-A. This result compelled by usage is our cases Constitution.

Consequently, agree plaintiffs we and Prince George’s County that county-wide an authorized ordinance "public is a local law” within the meaning 23A, Moreover, of Art. 2. as no other general upon laws have a bearing conflict here, 23A, 2,§ we hold under George’s the Prince County fortunetelling licensing prevails ordinance over the prohibitory ordinances of the two municipalities.

It however, emphasized, should be holding that our limited type presented of conflict in this case. With conflict, result regard a different types to other of claimed out, areas previously obtain. As some pointed authority General counties has delineated the

351 addition, In in relation to each other. municipalities in this different from those involved under circumstances case, county legislation over give effect to chartered might contrary be conflicting municipal ordinances by in enactments general intent embodied other Legislature. example, For if a chartered ordinance municipality from designed prohibit were exercising powers granted enumerated express 23A, § Assembly in Art. 2 municipalities by the General (1)-(31), laws, entirely in an different public general other presented.16 case would be however, case, is a in present ordinance entire throughout

typical licensing regulation applicable type of legislation is a county; object laws enacted public It is like the private business. counties, non-chartered for certain an identical or licensing of fortunetellers at providing for the (1957, Vol.), § 134A greater Repl. fee. Code — (Charles (Cecil fee), § County annual 134B $250.00 — — (Calvert fee), County § annual County 134C $250.00 $1,000.00 period). Concededly, light fee for a three month in Cecil, 23A, 2,§ in Charles and municipalities of Art. county licensing Calvert counties could not countermand the enacted authority public under these three local laws merely Assembly. General Our decision the instant case law gives equal licensing effect to the similar George’s enacted the Prince Council.

Judgment afñrmed. pay Petitioners to costs. express powers municipalities 16. It should be noted none of the Code, 23A, provisions set forth in Art. encompasses prohibition authority or in other fortunetelling. of the business of Nor would such implied recognized be under the so-called "Dillon” rule our 229, 237, Belsinger Signs, cases. New Carrollton v. 292 A.2d 648 272 A.2d 655 (1972); (1971). 464, 466, Westernport, McRobie Town The Md. authority present claimed case is upon based charters. Murphy, C.J., dissenting: agree county

I a direct conflict between the that there is licensing fortunetelling municipal ordinance within boundaries and the ordinances of the two home rule municipalities prohibit fortunetelling within their Court, however, respective disagree I that borders. with provisions Maryland Maryland Constitution and relating Code to charter counties and to home rule that the resolved in municipalities require conflict be favor I county contrary, ordinance. To the think the I, municipal prevail county over the ordinance. therefore, respectfully dissent. holds, quite correctly, purpose

The Court that the behind Art. XI-A lawmaking powers was to transfer from the Legislature county State to the councils of chartered legislative power counties and to invest them with full by enact grant local laws on all matters covered 2,§ express powers by under Art. Art. implemented emphatically disagree 25A of the Code. I most conclusion, however, thereby with the Court’s it "logically generally follows that those counties should have within their relationship municipalities same vis-a-vis Assembly enacting as the General would have in borders public county county local laws in the in the absence of home government.” rule no support Such a conclusion finds provisions and, moreover, completely of Art. XI-A at odds — Home Rule Municipal with the of Art. XI-E purpose — grant express powers and the Amendment Maryland Code. municipalities under Art. 23A of the do I with the Court’s narrow construction agree Nor XI-A, § upon power imposed limitation namely, municipalities, chartered counties to enact laws for enacting laws only that it a chartered from prohibits municipality but not only effective for or within a affecting enacting countywide legislation from in all long operates equally as it municipalities so To conclude is to municipalities within its boundaries. so seriously object undermine purpose municipal government. I home rule also with disagree majority that a "public ordinance ais local law” § within the of 2 contemplation of Art. 23A of the Code and consequence as a not exercise the "general” police powers granted in there contravention of a too, This, ordinance. is an erroneous conclusion dire consequences to future effectiveness of — government contemplated conclusion never Legislature which, enacting years prior seven to the adoption XI-E, of Art. only municipality intended that a could general police not exercise the if granted there "contrary public general laws,” meaning such laws enacted

Maryland.

Vital to proper interpretation of Art. XI-A and Art. XI-E Maryland of the Constitution and their implementing understanding statutes is an of fundamental precepts which State, underlie the between relationship on the one hand, and incorporated municipalities counties and on the other, as well as the relationship between counties and municipalities powers within their borders. The of a have a direct general reference to the of policy government State, of the while municipalities are chartered for a specific purpose, i.e., to sphere exercise within a limited powers interest, of in State convenience and advantage persons residing within the incorporated locality. Queen v. See Centreville Anne’s County, 652, (1951); Md. Daly 199 A.2d 599 Morgan, 87 v. (1888). 460, 16 Historically, Maryland, A. 287 counties municipalities and regarded coequal have been political State, subdivisions of exercising each a portion delegated governmental powers State’s connected with the of local government administration within its respective sphere of operation. Neither unit of local government is possessed police power inherent and neither legislatively superior They to the other. are separate entities, governmental operating distinct tracks, different and independent although they all derive 354 i.e., source, from the State from the same powers

their Maryland Assembly of of the General through enactments Maryland provisions contained pursuant Tawes, 229 v. Md. Maryland Committee See Constitution. (1962), grounds, 377 U.S. rev’d on other 406, 184 715 A.2d 294, 127 Md. A.2d 211 (1964); Perry Appeals, v. Board of 656 Com., v. Wash. San. 187 (1956); Md. Neuenschwander 507 Education, 181 (1946); v. Board of Clauss 67, 48 A.2d 593 Matthews, County 513, (1943); Howard v. A.2d 779 Md. 30 (1924); Daly Morgan, supra, v. 553, 127 118 Md. A.2d 146 (1879); Spencer, Baltimore, Md. 1 J. 51 Darling v. (1965); Maryland D. Local Government Contemporary Kelleher, Applicability in E. Thompson and County Located Within County Municipalities Law to 1975). Service, are Counties Advisory (Maryland Technical cities, only and, enjoy the status like sovereign Tawes, v. Maryland Committee municipal corporations. Matthews, supra. v. supra; Howard no legal general It is rule its limits upon located within legislate municipality granted subject scope which is within Antieau, Municipal Corporation municipality. 1 C. § (1972); Law, Municipal Corporations 114 1.32 62 C.J.S. (1971); (1949); § 18 Jur. Municipal Corporations Am. 2d (Cal. App. 203 P. 777 Knight, App. Ex Parte 55 Cal. Falls, 1921); Lomond, Idaho City Inc. v. of Idaho Ben Richmond (1968); Board of City 448 P.2d 209 (1958). Supervisors, 199 Va. 101 S.E.2d Prior to advent of home rule subject to the Maryland, were counties The Legislature. of "movement” absolute control the State by "fueled municipal home rule was for and legislative widespread indignation over excessive insensitivity problems interference with and toward concerns, with the by growing and and dissatisfaction system enormously performing inefficient at state level.” Ritchmount law-making functions the 48, 55-56, Board, A.2d 523 283 Md. Partnership (1978). indicates, As of home rule purpose Ritchmount "was by giving to restore and revitalize local government citizens power legislate counties as to local by matters free from undue encroachment state legislatures.” theory Id. principle at 55. behind the rule, Ritchmount, home explained as "is that the closer those who they make execute the laws are to the citizens represent, represented are better those citizens governed in accordance with democratic ideals.” Id. at 56. (ratified 1915) Amendment,

The Home Rule XI-A authorized adopt government counties to form of charter "subject only to the Constitution and Public General Laws this State.” 1. Section 2 of Art. XI-A directed the General by to provide grant statute a for express powers those counties adopting a charter. Section 3 invested "full power counties with enact local laws County said ... including repeal or amend local laws County by of said ... Assembly, enacted upon all by matters express powers granted,” covered proviso, however:

"that nothing herein contained shall be construed to authorize or empower County any Council of County in this State to regulations enact laws or any town, incorporated village, municipality or County, said any on matter powers covered granted town, to said village, municipality by or it, incorporating Act any Act subsequent or Acts amendatory thereto.”

Section 4 of Art. XI-A provided "no public local law shall be enacted the General Assembly for said ... County subject express covered granted . . . .”

Our cases indicate that Art. implemented by express powers granted to chartered counties under Art. 25A Code, provided the fullest measure of local self-government to such respect counties in of their local affairs. Council v. Funding, Investors (1973); 312 A.2d 225 League Mont. Citizens v. Greenhalgh, 356 (1969). among the 242 Included 252 A.2d

253 Md. authority counties was to chartered express powers granted 5(S) "deemed pass all ordinances §in of Art. 25A to peace, good government, maintaining expedient grant general of county.” As to and welfare of health League Citizens in Mont. power, we said police at 160-61: Greenhalgh, supra, purposes not be afforded would "Gratification it if the prompted home rule or the reasons of (S) to be 25A were not of Art. language of legislate grant power as a broad construed in Art. 25A enumerated specifically matters clearly indicates that section language and the is sound.... that such a construction peace, good for the pass laws grant power "A community health and welfare government, general welfare or referred to as 'a is sometimes clause,’ McQuillin, general grant (3rd 24.43, Ed.), § and: Corporations Municipal which are passed be 'Under it ordinances beneficial, they be and will necessary and courts, they are provided adjudged valid general with the and consonant responsible corporation, the local powers purposes and United States with the and not inconsistent statutes, Constitution, and and treaties ” state.’ policy laws and Partnership: in Ritchmount As we summarized [by powers legislative of local "The exercise subject at all times county] law, general provisions of the Constitution express allocated is limited to those matters under delegated Legislature which the [Art. XI-A] Annotated Code.... Article 25A of the Assembly expressly mandates powers exercisable delegate those enumerate electing counties charter form government.... In compliance with injunction, constitutional the Legislature enacted Act, which, the Express 1918 Powers as amended, endows charter counties a wide of array legislative powers and administrative over 25A, § local affairs. Art. These 'legislative 5. powers’ usually are those associated with the — government is, of objects to powers legislate health, for the safety benefit of the and general of community. welfare the local "Once a power delegated been has 25A, under Article the Home Rule Amendment Legislature forbids the enacting any State from public further laws scope local within the express power granted so ... until such time as the Legislature by power public withdraws the general Moreover, § law. county Art. 3 under the council of a county power chartered has full to enact laws and to or repeal amend local laws of the General Assembly applicable solely county, to the long legislation so as the county covered one express powers more the enumerated in Article 25A.” 283 Md. at 57.

It is thus evident powers that while the of chartered broad, are, counties are both they full and in addition to being subject State, to the public general laws of the also circumscribed provisions — XI-A, § Constitution and in particular Art. 3 that a power has no "any” to enact laws for incorporated municipality within the "any” matter granted covered to powers municipality. limiting This provision, in the plainest language, explicit constitutes recognition general rule that a (absent no legal power delegation power from the General Assembly) legislate any to municipality for located within its upon subject boundaries which is within scope powers granted to the municipality. Rockville,

Indeed, P. & P. v. Cap. we in Md.-Nat’l said (1974), XI-A, 3 "limits the Md. 325 A.2d municipality” laws for a local to enact power exercising legislative power from "precludes counties (emphasis at actually municipalities.” Id. 557-58 granted to It is thus clear that supplied). legislate to

retained the to, It did not intend nor did of chartered counties. exclusion it, authority over any part of its relinquish or transfer municipalities to chartered counties. (the in 1954 of Art. XI-E

Prior ratification Amendment), all charters Municipal Home Rule Assembly, pursuant granted by the General were delegated by law, which set forth By of the Acts of Legislature municipality. ch. 731 — — §§ 5 now as 1 of Art. general a law codified public 1947 (and to which charter 23A of the Code — subordinate) Legislature provided ordinances are grant wide-ranging incorporated municipalities with which, 2,§ enumerated in express specifically as "general power”: included contrary public to pass

"to such ordinances and the Constitution general public or local laws necessary in order to. they deem Maryland as municipality, to government of the good assure the rights, municipality’s preserve and protect good and preserve peace to property, privileges, and order, danger from persons property to and secure health, destruction, comfort protect and to municipality...." of the of the citizens and convenience 2 provides that "general” grant power, Following express have additional municipalities shall ordinance-making enumerated powers as thereafter (31). (1) among such powers, Included through subsections maintain fire and to establish and example, for is the

359 departments, acquire property to police building code.1 purposes, adopt municipal and to was, course, Municipal Home Rule purpose It govern to themselves permit municipalities Amendment to Easton, 274 Md. 337 Birge in local matters. v. Town of Aldermen, (1975); Mayor Woelfel v. 209 A.2d 435 Md. Cumberland, (1956); City of 121 A.2d 235 Hitchins v. (1955). end, To this Section of 117 A.2d 854 Assembly passing any from prohibits Art. XI-E the General incorporation, organization, "relating local law to municipality. The government, incorporated or affairs” of an Assembly "shall act in provides section the General incorporation, organization, to the government, relation municipalities only by public general laws affairs” of such classes, or more applicable alike to all one (the Assembly by statute designated the General Assembly designated but one class of subsequently General municipality). permits municipal corporations Section 3 relating or local laws repeal existing amend or charters or affairs incorporation, organization, government, their which were enacted the General previously any charter adopt repeal new charters and to amend or adopted provisions provides under the Article. Section provisions that all such charter or amendments thereto general laws] subject applicable [i.e. "shall be to all laws Assembly.2 provides, inter enacted Section alia, laws, thereto, "any relating or amendments or affairs of incorporation, organization, government, XI-E enacted before Art. became municipal corporation” or subject any provisions, effective "shall be to charter thereto, of this adopted provisions amendments under the Article.” enacted, originally exempted municipalities 1. As ch. 731 in a number of provisions. exemptions subsequently

counties from its All such were repealed by ch. 451 of the Acts of 1973. enact, permits 2. Section 5 Art. XI-E to amend of the General repeal municipal limiting property or amount of "local the rate of taxation or the laws” municipal debt. XI-E indicates Nothing in Art. public laws to enact

Assembly’s power chartered counties. being to municipalities was transferred intention, manifestly Art. XI-E then this been the Had authorized home rule expressly would not have existing laws municipalities supersede to or repeal government or organization, relating incorporation, to their XI-A or in either Art. there indication affairs. Nor is to power retained act Legislature’s XI-E that the Art. in municipalities all alike to general applicable law counties, be with chartered to was to be shared same class through enactment of ordinances thereby exercised county. municipalities in the applicable to all governmental § 23A, expressly granting Article broad State, general in is public to all a municipalities enacted transgressed law which cannot be ordinances county. general power §§ 3. The is ordinances, municipalities pass to "not there vested contrary deemed public general local laws” of necessary good government "to assure municipality, preserve municipality’s protect to and rights, privileges, preserve peace good to property, and order, persons property danger from to secure health, destruction, comfort and protect and to grant This municipality.” convenience of the citizens — to indeed the respects all similar — 25A, in Art. counterpart express power contained (S) § to chartered counties which we relating Code Greenhalgh, 253 Md. League construed Mont. Citizens 151, 160-61, 252 (1969), power” grant A.2d 242 as "broad necessary government. to of home rule gratify purposes the constitutional and wholly

It is inconsistent municipal government home rule statutory scheme of granted express powers limit these broad does, ordinances majority as the by concluding, laws” within "public local chartered counties are as to contemplation by that powers granted "general” pursuant enacted a conflict. in the event of yield section must

361 holds, in majority simply purported The wrong is when it cases, consistently upon reliance our that we have viewed "public the enactments of local laws” of county. Referring upon that to the authorities relied by Board, majority, v. Partnership supra, Ritchmount 57, only 283 Md. at that has full power states "the laws”; "public enact local case does not mention Board, 1, 6-8, laws.” Similarly, in v. 278 Md. Steimel 357 (1976), A.2d only validity 386 decided of a the Court law applicable enacted was General solely county. to one charter It was law which we held "public Atty. to be a law.” Again, City in State’s v. Balto., 597, 603-05, (1975), 274 Md. 337 A.2d 92 the law in question Assembly. was enacted General And in Council v. Investors Funding, supra, 270 Md. at the Court the Montgomery County noted that Council has power county’s exclusive to enact"local power laws.” The non pass vel "public local laws” not was mentioned. Similarly, Elec., dicta in Supervisors Co. Com’rs v. 192 196, 205, Md. (1949), laws,” 63 735 A.2d refers to "local public Stewart, 419, 137 local laws. State 152 Md. A.2d 39 (1927), only City indicates possesses Baltimore legislative power, but there is no indication that its "public constitute local laws.”

I do not believe "public term local law” has historically encompassed enactments councils of chartered On contrary, counties. at time of the passage 23A, § the General Assembly public enacted affecting local laws single municipalities, and the limitation on municipal powers the exercise of under that section simply indicates that could not contravene such laws. only case which lends support majority’s

position Montgomery Citizens, Scull v. (1968).

A.2d 92 We there referred to an enactment of the Montgomery County Council as "a interchangeably local law” or as a "local law.” Id. at 277. We said that counties laws,” have "the exclusive to enact local legislature § 4 the to

we of Art. XI-A "forbids noted that by covered any subject a law 'on public enact local Thus, Id. at 274. express granted’ [to counties].” powers term local law” has "public while indicates that the Scull enactments, with.county it also been used in connection so, this the term "local law” has also reveals that when "public of the local law” in been used. I think the use term precision part lack of on the represents Scull an inadvertent any that Court, of rather than determination in local the traditional "public are laws” enactments certainly, thp legislative contemplated Most in sense sense.3 23A, an by "public § 2 a local law” does include of Art. county. by a ordinance enacted chartered law” within "public that a The notion § 2 Art. 23A includes prohibition of of contemplation of the by Art. 23B cqunty is also debunked a ordinance chartered City Campbell pointed As we out ofthe Code. (1981), Article 23B 424 A.2d 738 of Annapolis, for the use of municipal a model charter contains grant municipality and constitutes incorporated if municipality people Assembly closely 22 Art. 23B adopt it. Section choose thereof parallels §in 2 of contained powers” language "general upon the exercise of such prohibition limits the Art. 23A but tq the "contrary which are to ordinances Manifestly, Maryland.” Constitution and laws State the enactment of ordinances does not include this limitation measure of the counties; it is the true chartered 23A, § prohibiting 2 in legislative intention in Art. contrary are "to the passage municipal laws” of the State. public general not, course, majority I view that mere share the do recommendation rejection of the Commission Sobeloff (1976), McDonough, Md. A.2d 788 3. Anne Co. v. Arundel quote passage from majority, upon by no than does more also relied Scull, context, under which indicates albeit a different encompasses "public an local law” Montgomery the term Charter course, This, is not determinative ordinance of the meaning council. "public as used General local law” of the term § 2 23A. of Article concerning a limitation upon county licensing authorization outside of the to areas limits of incorporated municipalities indicates that licensing ordinances are applicable within home municipalities. rule This is indeed a upon slender reed predicate which to so important interpretation. constitutional Nor do I majority’s share the concern that some municipalities will die on the vine for lack of vital services unless ordinances of chartered counties are effective within municipalities. This concern is more appropriately Legislature addressed which is empowered by XI-E, 2,§ classify corporations four into classes and to public general enact classes, laws as to such be necessary. deemed majority concedes that its holding is a narrow one limited to "type the presented conflict” in this case. It acknowledges that if a ordinance prohibited a municipality from exercising express the - (1) powers granted enumerated 23A, (31), § to it Art. or any law, other public general entirely "an different case presented.” would be glean I majority from the opinion that because none of these enumerated encompassed an express to the municipalities prohibit fortunetelling limits, within their corporate their ordinances yield must contrary county ordinance. If this accurately reflects majority holding, then I think it is in error in differentiating the "general” police power provided all municipalities § 2 under of Art. A23 from the specifically (1) enumerated powers contained subparagraphs through (31) of that I section. would judgment reverse the Circuit Court for Prince George’s County and hold that the municipal prevail over conflicting county ordinance.

Judges Smith Digges say authorize me to they that concur with the views expressed herein except as to the issue of conflict.

Smith, J., dissenting: (1) that under either of two reasons:

I reverse for would XI-A, 3,§ George’s Prince Art. Maryland Constitution subject legislate not this within permitted was (2) towns, is no or there actual limits of the two corporate Thus, agree I between the two ordinances. conflict except the issue of dissent as to Judge Murphy’s Chief conflict. provision The constitutional

i. majority

The states: that argument

"The no effect within county law has entirely upon language based boundaries is county council shall not § town, village any legislate incorporated 'for however, does This municipality.’ language, urged require construction language of 3 can be municipalities. quoted The namely way, that a construed a second only for or within a laws effective cannot enact not effective elsewhere municipality and phrase use 'for ... county. suggests second municipality,’ Moreover, light correct one. construction is the potential effects of Art. XI-A and the purpose result, contrary we the second believe that represents better reasoned construction approach.” sponsor advanced majority overlooks reason

The reported in the Baltimore provision of the time. As at Sun, 2, 1914, "prevent to at col. it was intended April the local interfering from with County Commissioners Its was from incorporated sponsor of towns.” 28,758 population people, County Dorchester 6,407 in one concentrated 22% or with about but town, I no reason to believe Cambridge. see incorporated of a by passage interference statute willing that he was town, objected but than one by county applicable more affected. if but one town were to such interference majority states: XI-A, § council 'full’ gives the "Article on all matters to enact local laws legislative power under Art. express powers grant covered cases.)] county’s Subsequent to a XI-A, [(Citing § 2. XI-A, Art. under organization constitutional longer no laws for the authority to enact powers express subject covered any Art. counties. Md. Const. to home rule granted § 4.” (1924) Art. Maryland and in Code

I find the Constitution act, authority 25A, granted no original express powers powers to the legislate charter counties to relative adoption towns. Prior to the of Constitution incorporated XI-E, with the would have continued Assembly. General holding of such a consequences I do not see the drastic — certainly Historically at the majority

which the sees. — question have time the amendment by way much more of services to their residents provided than have counties. proposed he plain Shepherd,

It is to me that Senator when amendment, unanimously approved by the his which was Senate, county have no intended that the charter legislative prerogatives kind a town within the municipality. grant

ii. Conflict regulation obviously What we have here is a intended police, By George’s of Prince fortune-telling. the terms (d) "[t]he Code 5-156 total number of licenses that (1) one for currently outstanding shall not exceed

may be (80,000) in the reported residents as eighty each thousand (2) not more than two Census and latest U.S. Decennial family.” of the same may issued to members licenses be provision "the indicates that under this County its brief fortune-telling licenses in the is limited to number years in recent is that "experience its eight” and every year.” The renew their licenses eight persons same prints recent and clear requires "[t]hree statute size, the head and shoulders showing 2" x 2" photographs, affixed permanently is to "be applicant,” one which ....” The license certificate issued to the face "[a] contain statement as whether application must felony or ever been convicted of a applicant violation, "and, if than a motor vehicle misdemeanor” other convicted, offense, and and so, the nature of the when where An applicant therefor.” penalty punishment imposed references, the names of at least three required is to submit him, certify applicant’s good as to the unrelated to "who will Moreover, § 5-158 responsibility.” character and business applicant fingerprinted to "be requires each George’s County Prince Police by the photographed and, be fingerprints photographs shall Department, said ordinary course of business of regular maintained police department.” said Brennan, 377, 24 A.2d 911 Corp.

In Theatrical (1942), Ogle Marbury said for the Court: Judge Act whether is question

"The regulatory measure or a primarily a revenue rules of important, because different measure may apply. regulatory A measure construction revenue, the amount produce but such a case and have some definite relation must be reasonable measure, of the Act. A revenue on the purpose hand, if regulation, but provide other also primary purpose, raising of revenue is by the courts. the tax is not reviewable amount of determined by which it can be There is no set rule primarily Act category in which belongs. general, may In it be said that when it appears from the Act itself that revenue is its main objective, supports the amount of the that tax theory, the enactment is a revenue measure. 'In * * * general, imposed where the fee is for the purpose regulation, requires and the statute compliance with certain conditions addition to payment prescribed sum, of the sum a such proper, imposed by police license virtue of the power; solely but it where is exacted for revenue purposes payment give right carry and its conditions, business without further it is a Jur., Licenses, tax.’ 33 Am. Paragraph page 340.” Id. at 381-82.

Accord, Campbell City 300, 305, 424 v. ofAnnapolis, 289 Md. (1981); Ass’n, A.2d 738 Mont. Co. v. Md. Soft Drink 281 Md. (1977) 116, 133-34, (quoting 377 A.2d 486 Corp. Theatrical Brennan, 381-82); 180 Md. at American Nat’l v. M. & C. C., (1966) 33-34, 245 Md. 224 A.2d 883 (quoting 381-82). Brennan, Theatrical Corp. v. 180 Md. at licenses, The license fee Eight here is such $250. County says limited, number to which the it is thus produce $2,000 would by way revenue, a total of hardly significant 600,000 in county Thus, sum a people. or more when one general notes that fact and the provisions of the ordinance, licensing it becomes obvious that this is intended measure, as a regulatory not producing as a revenue measure. The town ordinances here which forbid fortune-telling simply are more police regulatory restrictive measures. majority opinion City upon relies of Baltimore v. Firey, (1969),

Sitnick & 255 A.2d 376 for the proposition that political may "a subdivision prohibit not what the by general public State permitted,” law has thus that simply way "[t]here is no the municipal ordinances prohibiting practice fortunetelling can be 'supplemental’ county’s considered authorization to fortunetelling (Emphasis business.” engage all, might helpful exactly be look at original.) First of it say did in Sitnick: the Court what opinions we have cited "A distillation thought a political leaves the residual may the State prohibit not what subdivision it permitted, has but general public law expressly not the State prohibit what way, general unless a another permitted. Stated right express an denial public law contains authority, prohibition act State’s field activity impliedly in a does certain from activity shall be free guarantee that all other same in such a situation the regulation supplemental to opened field thus be original). in (emphasis at regulation.” Id. here is a measure me that what we have plain It is severely fortune-telling in regulate restrict intended yet County. The have enacted a more George’s Prince towns ordinance, In the context prohibition. an absolute restrictive good is arises, I the town ordinance in which this believe case contrary, then to that If there a view the under Sitnick. Sitnick, I I much as believe would overrule as extent stability in the need for court decisis and doctrine stare decisions. J., dissenting:

Digges, Murphy’s I, Smith, Judge with Chief Judge agree as does of the conflict issue. regard to his resolution except dissent reservation, myself with I associate Accordingly, Judge Murphy his by Chief expressed the views both in his. Smith Judge stated dissent well as those

Case Details

Case Name: Mayor of Forest Heights v. Frank

Court Name: Court of Appeals of Maryland

Date Published: Oct 7, 1981

Citation: 435 A.2d 425

Docket Number: [No. 47, September Term, 1980.]

Court Abbreviation: Md.