Mayor of Forest Heights v. Frank

435 A.2d 425, 291 Md. 331, 1981 Md. LEXIS 272
CourtCourt of Appeals of Maryland
DecidedOctober 7, 1981
Docket[No. 47, September Term, 1980.]
StatusPublished
Cited by37 cases

This text of 435 A.2d 425 (Mayor of Forest Heights v. Frank) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mayor of Forest Heights v. Frank, 435 A.2d 425, 291 Md. 331, 1981 Md. LEXIS 272 (Md. 1981).

Opinions

Eldridge, J.,

delivered the opinion of the Court. Murphy, C. J., and Smith and Digges, JJ., dissent. Murphy, C. J., filed a dissenting opinion at page 352 infra, in which Smith and Digges, JJ., concur in part. Smith, J., filed a dissenting opinion at page 364 infra, in which Digges, J., concurs. Digges, J., filed a dissenting opinion at page 368 infra.

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 Constitution and Maryland Code relating to chartered counties and to incorporated municipalities.

The plaintiffs Bessie 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 [334]*334George’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.3 The 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 [335]*335(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 foretunetelling within municipal boundaries. The court, however, held that the municipal ordinances prohibiting foretunetelling 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 §§ 4.1 and 4.2 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 [336]*336they obtained their licenses to engage in fortunetelling in Forest Heights and Mount Rainer, 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 [337]*337statute, 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. See Annapolis 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....

Free access — add to your briefcase to read the full text and ask questions with AI

Related

110OAG3
Maryland Attorney General Reports, 2025
Maryland Attorney General Opinion 110OAG003
Maryland Attorney General Reports, 2025
Jones v. Anne Arundel County
69 A.3d 426 (Court of Appeals of Maryland, 2013)
Maryland Attorney General Opinion 96 OAG 110
Maryland Attorney General Reports, 2011
NEFEDRO v. Montgomery County
996 A.2d 850 (Court of Appeals of Maryland, 2010)
Frank Krasner Enterprises, Ltd. v. Montgomery County
401 F.3d 230 (Fourth Circuit, 2005)
(2004)
89 Op. Att'y Gen. 107 (Maryland Attorney General Reports, 2004)
Edwards Systems Technology v. Corbin
841 A.2d 845 (Court of Appeals of Maryland, 2004)
Holiday Universal, Inc. v. Montgomery County
833 A.2d 518 (Court of Appeals of Maryland, 2003)
Mayor and Council of Rockville v. Rylyns Enterprises, Inc.
814 A.2d 469 (Court of Appeals of Maryland, 2002)
Tyma v. Montgomery County
801 A.2d 148 (Court of Appeals of Maryland, 2002)
Frank Krasner Enterprises, Ltd. v. Montgomery County
166 F. Supp. 2d 1058 (D. Maryland, 2001)
(1996)
81 Op. Att'y Gen. 133 (Maryland Attorney General Reports, 1996)
Montgomery County v. Waters Landing Ltd. Partnership
635 A.2d 48 (Court of Special Appeals of Maryland, 1994)
Coalition for Open Doors v. Annapolis Lodge No. 622
635 A.2d 412 (Court of Appeals of Maryland, 1994)
Allied Vending, Inc. v. City of Bowie
631 A.2d 77 (Court of Appeals of Maryland, 1993)
Talbot County v. Skipper
620 A.2d 880 (Court of Appeals of Maryland, 1993)
Board of Supervisors of Elections v. Smallwood
608 A.2d 1222 (Court of Appeals of Maryland, 1992)
Sugarloaf Citizens Assoc., Inc. v. Gudis
573 A.2d 1325 (Court of Appeals of Maryland, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
435 A.2d 425, 291 Md. 331, 1981 Md. LEXIS 272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mayor-of-forest-heights-v-frank-md-1981.