Mayor and Council of Forest Heights v. Frank

• Decision Date: 07 October 1981
• Docket Number: No. 47,47
• Citation: 291 Md. 331,435 A.2d 425
• Parties: MAYOR AND COUNCIL OF FOREST HEIGHTS et al. v. Tillie FRANK et al.
• Court: Maryland Court of Appeals

Page 331

291 Md. 331

435 A.2d 425

MAYOR AND COUNCIL OF FOREST HEIGHTS et al. v.Tillie FRANK et al.

No. 47.

Court of Appeals of Maryland.

Oct. 7, 1981.

Raymond J. McDonough and Kent Holland, Jr., Oxon Hill (McDonough & Schmuhl, P. A., Oxon Hill, on the brief), Morris Topf, Hyattsville (Reichelt, Nussbaum, Brown & Topf, Hyattsville, on the brief), for appellants.

Robert B. Ostrom, County Atty., Michael O. Connaughton, Deputy County Atty., Steven M. Gilbert and Robert N. Stokes, Jr., Associate County Attys., Upper Marlboro, on amicus curiae brief of Prince George's County.

Kenneth A. Lechter, Marlow Heights (Michael J. Graham and Fisher & Walcek, Marlow Heights, on the brief), for appellees.

Roger W. Titus, Rockville, on amicus curiae brief of Maryland Municipal League, Inc.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

ELDRIDGE, Judge.

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

The plaintiffsBessie Frank and Delors Ristick applied for and were granted licenses from Prince George's County to practice fortunetelling at specified locations within the county, pursuant to Subtitle 5, Division 5, of the Prince George's County Code.The license issued to Ristick specifies a location within the corporate limits of the City of Mount Rainier; the location contained in the license issued to Bessie Frank is within the Town of Forest Heights.² Both Forest Heights and Mount Rainier had enacted ordinances prohibiting fortunetelling within their respective municipal limits prior to plaintiffs' commencing business at the specified locations.³The bill of complaint filed by Bessie Frank, Tillie Frank and Delors Ristick in the Circuit Court for Prince George's County, requested a judgment declaring that the Forest Heights and Mount Rainier ordinances prohibiting fortunetelling are in direct conflict with Prince George's County law and are, therefore, void.Subsequently, Prince George's County was made a party to the action pursuant to the Declaratory Judgment Act, Maryland Code(1974, 1980 Repl.Vol.), § 3-405(b) of the Courts and Judicial Proceedings Article.

The Circuit Court for Prince George's County determined that Forest Heights and Mount Rainier had the power and authority under their respective charters and the federal and state constitutions to enact legislation prohibiting fortunetelling within municipal boundaries.The court, however, held that the municipal ordinances prohibiting fortunetelling were in direct conflict with the Prince George's County law under which the plaintiffs were licensed to tell fortunes at specific locations within the limits of the two municipalities.The court thus declared §§ 4.1and4.2 of the Forest Heights Ordinance Code, and § 10-120 of the Code of Ordinances of Mount Rainier, to be void.The two municipalities appealed to the Court of Special Appeals, and this Court granted their petition for certiorari prior to any action by the intermediate appellate court.

In challenging the declaratory judgment, Forest Heights and Mount Rainier make three arguments.First, they contend that there is no direct conflict between the licensing provisions of Subtitle 5, Division 5, of the Prince George's County Code and the two municipal ordinances.This position is based upon the premise that the county scheme is entirely restrictive and that the municipal legislation merely represents a permissible extension of this purpose.The second argument of the municipalities is that, even if there would otherwise be a conflict between the county law and the municipal ordinances, the county law has no application within the two municipalities.They contend that, under Art. XI-A, § 3, of the Maryland Constitution, legislation of a chartered county has no effect whatsoever within municipal limits if the county legislation concerns a matter on which the municipality has authority to legislate.Third, the municipalities argue that, if there is a direct conflict, and if both the county and the municipalities have power to enact legislation that is effective within the municipal limits, then the municipal ordinances should prevail.

The plaintiffs, on the other hand, insist that there is a direct conflict between the county law, pursuant to which they obtained their licenses to engage in fortunetelling in Forest Heights and Mount Rainier, respectively, and the municipal ordinances which completely prohibit them from fortunetelling at the locations specified in the county licenses.They further argue that the county legislation applies throughout the entire county and that the authority of a chartered county supersedes that of a municipality, thereby rendering ineffective the prohibitory ordinances of Forest Heights and Mount Rainier.⁴

In keeping with this Court's established policy of not deciding constitutional questions unless necessary, Simms v. State, 288 Md. 712, 725, 421 A.2d 957(1980), and cases there cited, we shall first consider whether the county law and the municipal ordinances are in conflict, irrespective of the reach of county law or which law should be given effect in the event of conflict.

I

In arguing that the county licensing statute does not conflict with the municipal ordinances, the municipalities claim that their ordinances merely represent a higher degree of regulation, i. e., prohibition, than the already restrictive county law.In support of their interpretation of the county law as restrictive, rather than permissive, the municipalities point to the many requirements in the county law (e. g., fingerprints, photographs, provision of criminal records) and the quantitative limits contained therein (e. g., no more than one license per eighty thousand residents, with the total number of licenses issued not to exceed eight, and not more than two licenses per family).The municipalities conclude that their ordinances, completely prohibiting fortunetelling within municipal boundaries, are "clearly consistent" with the "limiting and restricting nature" of the county's licensing statute, and simply "carry the idea to the next logical limitation."

Wherever reasonably possible, courts will construe enactments so that there is no conflict.This principle avoids the need to invalidate one law or the other.SeeAnnapolis v. Annap. Waterfront Co., 284 Md. 383, 391, 396 A.2d 1080(1979);Wilson v. Bd. of Sup. of Elections, 273 Md. 296, 301, 328 A.2d 305(1974);Acting Dir., Dept of F. & P. v. Walker, 271 Md. 711, 718-719, 319 A.2d 806(1974).We have also recognized that a local governmental unit may be justified in going further than the policy in effect throughout the broader governmental unit.In City of Baltimore v. Sitnick & Firey, 254 Md. 303, 255 A.2d 376(1969), the Court considered whether there was a conflict between a Baltimore City ordinance establishing a minimum wage of $1.25, applicable to taverns, and a State law setting the minimum rate at $1.00, but specifically exempting taverns.This Court held that the Baltimore City law was harmonious with the State law, and that the provisions of the local law lent themselves to the "characterization of supplementation of the State law, rather than irreconcilable differences....In none of the provisions of the listed conflicting regulations of the City law does it authorize a minimum wage which is lower than that provided by the State law, nor does it exempt any employees included under the State law; we think that is the crucial norm which must be used to measure the City law regarding any conflict with the statute."Id. at 324-325, 255 A.2d 376.

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