No. 13188 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1976 

U.S. MANUFACTURING AND 

DISTRIBUTING CORPORATION, 

Plaintiff and Appellant, 

CITY OF GREAT FALLS, 

Defendant and Respondent. 

Appeal from: District Court of the Eighth Judicial District, 

Honorable Paul G. Hatfield, Judge presiding. 

Counsel of Record : 

For Appellant : 

E. F. Gianotti argued and Ralph Randono argued, 

Great Falls, Montana 

For Respondent : 

Larsen and Gliko, Great Falls, Montana 

David V. Gliko argued, Great Falls, Montana 

Submitted: February 4, 1976 

Decided: -: 5 :.E ..j/fj 

., Filed : -. ,- 447: 

i J 
Mr. Justice Castles delivered the Opinion of the Court. 

The district court of the eighth judicial district, 

County 

~ascade/,has declared a portion of Montana's recently amended 

obscenity law, sections 94-8-110 and 94-8-110.1, R.C.M. 1947, 

to be constitutionally infirm. In this appeal from that 

declaratory judgment we reverse the determination of the district court and uphold the obscenity law enacted by the Fortyfourth Legislature. 

The constitutional issue here arose from a somewhat 

complicated procedural setting. U.S.Manufacturing and Distributing Corporation, hereinafter referred to as appellant, sought 

a temporary restraining order against respondent City of Great 

Falls. Appellant sought to enjoin the city from interference 

with its business operation through the enforcement of a recently 

enacted municipal ordinance on obscenity. The material portion 

of that ordinance, No. 1862, reads: 

"6-1-9: OBSCENE MATERIAL PROHIBITED: Sale and 

Distribution of Obscene Material --- It is 

unlawful to any person to knowingly send or 

cause to be sent, bring or cause to be brought 

into the City of Great Falls for sale or distribution or prepare, publish, print, exhibit, 

distribute or offer to distribute, or have in 

his possession with intent to distribute or to 

exhibit or offer to distribute any obscene 

material." 

Respondent's answer denied the propriety of injunctive 

relief and moved the district court for a declaratory judgment 

to resolve the admitted conflict between the municipal ordinance 

and the state statute regulating obscenity. That statute provides 

in pertinent part: 

"94-8-110 Obscenity (1) A person commits the 

offense of obscenity when, with knowledge of the 

obscene nature thereof, he purposely or knowingly: 

"(a) Sells, delivers or provides, or offers or 

agrees to sell, deliver or provide any obscene 

writing, picture, record, or other representation 

or embodiment of the obscene to anyone under the 

age of eighteen (18) ; or 
"(b) Presents or directs an obscene play, dance 

or other performance or participates in that 

portion thereof which makes it obscene to anyone 

under the age of eighteen (18); or 

"(c) Publishes, exhibits, or otherwise makes 

available anything obscene to anyone under the 

age of eighteen (18), or 

"(d) Performs an obscene act or otherwise presents 

an obscene exhibition of his body to anyone under 

the age of eighteen (18) ; or 

"(e) Creates, buys, procures or possesses obscene 

matter or material with the purpose to disseminate 

it to anyone under the age of eighteen (18); or 

"(f) Advertises or otherwise promotes the sale of 

obscene material or materials represented or held 

out by him to be obscene. 

" (5) No city or municipal ordinance may be adopted 

which is more restrictive as to obscenity than the 

provisions of this section and section 94-8-110.1." 

~hus while the municipal ordinance and the state statute define 

obscene material in substantially the same terms, the city ordinance prohibits sale or distribution of such material to those I 

over eighteen (18) years as well. We are not here concerned 

with the wisdom of either prohibition. 

Appellant joined respondent's request for a declaratory 

judgment. Hearing was had. Subsequently the district court 

entered a declaratory judgment which stated in part: 

"IT IS THEREFORE ORDERED that Senate Bill No. 

250 [sections 94-8-110 and 94-8-110.11 enacted 

by the 44th Legislature of the State of Montana 

and made effective on April 14, 1975, is unconstitutional in part by effecting to restrict 

Cities and municipalities from enacting 

ordinances more restrictive than said State 

law and that Ordinance No. 1862, passed by the 

Commission of the City of Great Falls on May 6th, 

1975, is valid. " 

Appellant raises these issues for review of that judgment by this Court: 

1. Whether proper certification to this Court and notice 

to the Attorney General pursuant to Rule 38, Montana Rules of 
Appellate Civil Procedure, was given? 

2. Whether sections 94-8-110 and 94-8-110.1, R.C.M. 

1947, as amended, are unconstitutional in view of rulings of 

the United States Supreme Court on obscenity? 

3. Whether a municipal corporation has the power to 

enact a valid and binding ordinance relating to obscenity in 

excess of limits imposed on such ordinances by the state legislature? 

Appellant's argument concerning compliance with Rule 38, 

M.R.App.Civ.P., is of little merit. In Grant v. Grant, 

Mont . , 531 P.2d 1007, 32 St.Rep. 191, 193; Clontz v. Clontz, 

Mont . , 531 P.2d 169, 32 St.Rep. 169, 172; and Gilbert v. 

Gilbert, Mont . , 533 P.2d 1079, 32 St.Rep. 163, 165; this 

Court declined to rule on constitutional issues raised on appeal 

because certification to this Court and notification to the 

Attorney General had not been given pursuant to Rule 38. Requiring such notice to the state's chief legal officer is to enable 

him to appear in defense of the challenged legislative acts. In 

this matter certification to this Court and notice to the Attorney 

General were accomplished on November 19, 1975. Such notice 

provided ample opportunity for the Attorney General to prepare 

for the hearing held February 4, 1976. The spirit of the rule 

appears satisfied when such opportunity to prepare for the constitutional challenge is given. Accordingly, we reject the emphasis which appellant seeks to place on the immediacy of the 

notice required by Rule 38. 

We next consider whether the statutes in question, sections 94-8-110 and 94-8-110.1, R.C.M. 1947, are constitutionally 

invalid when viewed in the light of recent United States Supreme 

Court obscenity decisions. In this regard, the district court 

made these conclusions of law: 
"I. That the most recent United States Supreme 

Court decisions rendered in the area of obscenity 

provides for 'basic guidelines' to be applied in 

the determination of 'obscene material', to-wit: 

(a) whether the average person applying contemporary community standards would find the work, 

taken as a whole, appeals to the prurient interest 

* * *. Miller v. California, 413 U.S. 15, 31, 

37 L Ed 2d 419, 93 S.Ct. 2607. 

"11. That the 'community standards' established 

by the Supreme Court are local standards as opposed 

to statewide standards. 

"111. That the said State law attempts to establish 

statewide standards by its limitation on the municipalities of the State of Montana from passing more 

restrictive ordinances than the said State law - and 

is unconstitutional to that extent. 

"IV. That Ordinance No. 1862 of the City of Great 

Falls allows the local community to establish its 

standard of obscenity for persons of all ages and 

is therefore valid. " (Emphasis added. ) 

- 

With respect to the district court's conclusion of law 

I1 which is basic to the constitutional issue in this matter, 

we can find no basis in the law on obscenity as articulated by 

the Supreme Court for such a limiting definition of "community 

standards" as that arrived at by the district court. Further, 

the district court has not related this limiting definition of 

"community standards" to the Constitution which it claims is 

violated by the state statutes. 

Statewide standards for obscenity are constitutionally 

permissible. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 

37 L Ed 2d 419. The United States Supreme Court in Kaplan v. 

California, 413 U.S. 115, 121, 93 S.Ct. 2680, 37 L Ed 2d 492, 498, 

stated: 

" * * * the Court today holds that the '"contemporary community standards of the state of 

California"', as opposed to 'national standards,' 

are constitutionally adequate to establish whether 

a work is obscene. * * *" (Emphasis added.) 

In United States v. 12 200-Ft. Reels, 413 U.S. 123, 129, 

93 S.Ct. 2665, 37 L Ed 2d 500, 507, the Supreme Court said: 

"As this case came to us on the District Court's 
summary dismissal of the forfeiture action, no 

determination of the obscenity of the materials 

involved has been made. We have today arrived 

at standards for testing the constitutionality 

of state legislation regulating obscenity. See 

Miller v. California, 413 U.S. at 23, 25, 37 L Ed 2d 

at 431. * * *" (Emphasis added.) 

Support for the broad definition of "community standards" 

is also found in an appeal of a recent federal criminal prosecution for obscenity. In United States v. Danley, 523 F.2d 369, 

370, District Judge Russell E. Smith, stated: 

"In judging the community standard, the court, 

dealing as it was with laws regulating the mails 

and interstate commerce, properly considered the 

community as embracing more than the State of 

Oreqon. While under Miller v. California, supra, 

takerin conjunction with United States v. 12 

200-Ft. Reels of Super 8 MM. Film, 413 U.S. 123, 

93 S.Ct. 2665, 37 L Ed 2d 500 (1973), it is 

permissible in federal prosecution to define the 

state as a community, it is clear from Hamling 

v. United States, 418 U.S. 87, 94 S.Ct. 2887. 

41 L Ed 2d 590 (1974), that cbnsideration ma; be 

given to standards without the state. United 

States v. Harding, 507 F.2d 294 (10th Cir. 1974), 

cert. denied, U.S. , 95 S.Ct. 1437, 43 

L Ed 2d 679 (1975); United States v. Miller, 505 

F.2d 1247 (9th Cir. 1974) ." (Emphasis added.) 

The district court's conclusion No. I1 finds no support 

in the constitutional law on obscenity. A judgment based on an 

erroneous conclusion of the law cannot stand. 

We next consider the third issue raised by this appeal-- 

whether the municipal corporation has the power to regulate 

obscenity notwithstanding a legislative enactment which expressly 

preempts the field. Since there are no findings of fact nor conclusions of law suggesting that a municipal corporation has such 

an inherent power, that power cannot form a foundation for this 

judgment, or similarly an appeal from it. Granted though this 

we 

judgment may suggest such inherent powers,/view the judgment 

based on the district court's conclusions of law. See: Crncevich 

v. Georgetown Recreation Corporation, Mont . , 541 P.2d 

56, 32 St-Rep. 963, 969. In addition, the 1972 Montana Constitution contains a new provision on local government in Article XI, 
Section 6, which states in part: 

"Self-government powers. A local government 

unit adoptinq a self-qovernment charter may 

exercise- any-power not prohibited by this 

constitution, law, or charter. * * *" 

(Emphasis added. ) 

The city ordinance here which is admittedly in conflict with 

the prohibition of section 94-8-110(5), R.C.M. 1947, cannot 

stand in the face of such a constitutional provision. 

The judgment of the district court is reversed. 

/ /Chief Justice