dissenting:
I would reverse for either of two reasons: (1) that under Maryland Constitution Art. XI-A, § 3, Prince George’s County was not permitted to legislate on this subject within the corporate limits of the two towns, or (2) there is no actual conflict between the two ordinances. Thus, I agree with Chief Judge Murphy’s dissent except as to the issue of conflict.
i. The constitutional provision
The majority states:
"The argument of the municipalities that the county law has no effect within municipal boundaries is based entirely upon the language of Art. XI-A, § 3, that the county council shall not legislate 'for any incorporated town, village or municipality.’ This language, however, does not require the construction urged by the municipalities. The quoted language of § 3 can be construed a second way, namely that a county cannot enact laws effective only for or within a particular municipality and not effective elsewhere in the county. The use of the phrase 'for any ... municipality,’ suggests that this second construction is the correct one. Moreover, in light of the purpose of Art. XI-A and the potential effects of a contrary result, we believe that the second construction represents the better reasoned approach.”
The majority overlooks the reason advanced by the sponsor of that provision at the time. As reported in the Baltimore Sun, April 2, 1914, at 1, col. 1, it was intended to "prevent County Commissioners from interfering with the local ordinances of incorporated towns.” Its sponsor was from Dorchester County with a 1910 population of 28,758 people, *365but with about 22% or 6,407 concentrated in one incorporated town, Cambridge. I see no reason to believe that he was willing for interference by passage of a statute by a county applicable to more than one town, but objected to such interference if but one town were affected.
The majority states:
"Article XI-A, § 3, gives the county council 'full’ legislative power to enact local laws on all matters covered by the grant of express powers under Art. XI-A, § 2. [(Citing cases.)] Subsequent to a county’s organization under Art. XI-A, the General Assembly no longer has the constitutional authority to enact public local laws for the county on any subject covered by the express powers granted to home rule counties. Md. Const. Art. XI-A, § 4.”
I find in the Constitution and in Maryland Code (1924) Art. 25A, the original express powers act, no authority granted to charter counties to legislate relative to the powers of incorporated towns. Prior to the adoption of Constitution Art. XI-E, this power would have continued with the General Assembly.
I do not see the drastic consequences of such a holding which the majority sees. Historically — and certainly at the time of the amendment in question — municipalities have provided much more by way of services to their residents than have counties.
It is plain to me that Senator Shepherd, when he proposed his amendment, which was unanimously approved by the Maryland Senate, intended that the charter county have no legislative prerogatives of any kind in a town within the grant of powers to the municipality.
ii. Conflict
What we have here is a regulation obviously intended to police, fortune-telling. By the terms of Prince George’s County Code § 5-156 (d) "[t]he total number of licenses that *366may be currently outstanding shall not exceed one (1) for each eighty thousand (80,000) residents as reported in the latest U.S. Decennial Census and not more than two (2) licenses may be issued to members of the same family.” The County in its brief indicates that under this provision "the number of fortune-telling licenses in the County is limited to eight” and that its "experience in recent years is that the same eight persons renew their licenses every year.” The statute requires "[t]hree prints of recent and clear photographs, 2" x 2" in size, showing the head and shoulders of the applicant,” one of which is to "be permanently affixed to the face of any license certificate issued ....” The application must contain "[a] statement as to whether the applicant has ever been convicted of a felony or misdemeanor” other than a motor vehicle violation, "and, if so, the nature of the offense, when and where convicted, and the penalty or punishment imposed therefor.” An applicant is required to submit the names of at least three references, unrelated to him, "who will certify as to the applicant’s good character and business responsibility.” Moreover, § 5-158 requires each applicant to "be fingerprinted and photographed by the Prince George’s County Police Department, and, said fingerprints and photographs shall be maintained in the regular and ordinary course of business of said police department.”
In Theatrical Corp. v. Brennan, 180 Md. 377, 24 A.2d 911 (1942), Judge Ogle Marbury said for the Court:
"The question whether a particular Act is primarily a revenue measure or a regulatory measure is important, because different rules of construction apply. A regulatory measure may produce revenue, but in such a case the amount must be reasonable and have some definite relation to the purpose of the Act. A revenue measure, on the other hand, may also provide for regulation, but if the raising of revenue is the primary purpose, the amount of the tax is not reviewable by the courts. There is no set rule by which it can be determined *367in which category a particular Act primarily belongs. In general, it may be said that when it appears from the Act itself that revenue is its main objective, and the amount of the tax supports that theory, the enactment is a revenue measure. 'In general, * * * where the fee is imposed for the purpose of regulation, and the statute requires compliance with certain conditions in addition to the payment of the prescribed sum, such sum is a license proper, imposed by virtue of the police power; but where it is exacted solely for revenue purposes and its payment give the right to carry on the business without any further conditions, it is a tax.’ 33 Am. Jur., Licenses, Paragraph 19, page 340.” Id. at 381-82.
Accord, Campbell v. City of Annapolis, 289 Md. 300, 305, 424 A.2d 738 (1981); Mont. Co. v. Md. Soft Drink Ass’n, 281 Md. 116, 133-34, 377 A.2d 486 (1977) (quoting Theatrical Corp. v. Brennan, 180 Md. at 381-82); American Nat’l v. M. & C. C., 245 Md. 23, 33-34, 224 A.2d 883 (1966) (quoting Theatrical Corp. v. Brennan, 180 Md. at 381-82).
The county license fee here is $250. Eight such licenses, the number to which the County says it is limited, thus would produce a total of $2,000 by way of revenue, a hardly significant sum in a county of 600,000 or more people. Thus, when one notes that fact and the general provisions of the licensing ordinance, it becomes obvious that this is intended as a regulatory measure, not as a revenue producing measure. The town ordinances here which forbid fortune-telling are simply more restrictive police regulatory measures.
The majority opinion relies upon City of Baltimore v. Sitnick & Firey, 254 Md. 303, 255 A.2d 376 (1969), for the proposition that "a political subdivision may not prohibit what the State by general public law has permitted,” and thus that "[t]here is simply no way that the municipal ordinances prohibiting the practice of fortunetelling can be considered 'supplemental’ to the county’s authorization to *368engage in the fortunetelling business.” (Emphasis in original.) First of all, it might be helpful to look at exactly what the Court did say in Sitnick:
"A distillation of the opinions we have cited leaves the residual thought that a political subdivision may not prohibit what the State by general public law has permitted, but it may prohibit what the State has not expressly permitted. Stated another way, unless a general public law contains an express denial of the right to act by local authority, the State’s prohibition of certain activity in a field does not impliedly guarantee that all other activity shall be free from local regulation and in such a situation the same field may thus be opened to supplemental local regulation.” Id. at 317 (emphasis in original).
It is plain to me that what we have here is a measure intended to regulate and severely restrict fortune-telling in Prince George’s County. The towns have enacted a yet more restrictive ordinance, an absolute prohibition. In the context in which this case arises, I believe the town ordinance is good under Sitnick. If there is a view to the contrary, then to that extent I would overrule Sitnick, as much as I believe in the doctrine of stare decisis and the need for stability in court decisions.