### 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 JMr. Justice Castles delivered the Opinion of the Court. The districtcourt 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, tobe constitutionally infirm. In this appeal from that declaratory judgment we reverse the determination of the dis

### trict 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 toany person toknowingly send or cause tobe sent, bring or cause tobe brought into the City of Great Falls for sale or distribution or prepare, publish, print, exhibit, distribute or offer todistribute, or have in his possession with intent todistribute or to exhibit oroffer todistribute any obscene material." Respondent's answer denied the propriety of injunctive relief and moved the district court for a declaratory judgment toresolve the admitted conflictbetween the municipal ordinance and the 

### state statuteregulating obscenity. That statuteprovides inpertinent 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 offersor 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 inthat 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 ormaterial with the purpose todisseminate it toanyone under the age of eighteen (18); or "(f)Advertises or otherwise promotes the saleof obscene material ormaterials represented or held out by him tobe obscene.



### "(5) No cityormunicipal ordinance may be adopted which ismore restrictive astoobscenity than the provisions of this section and section 94-8-110.1." ~hus while themunicipal ordinance and the state statutedefine obscene material in substantially the 

### same terms, the cityordinance prohibits saleor distribution of suchmaterial tothose
I over eighteen (18) years aswell. 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 inpart: "IT IS THEREFORE ORDERED that Senate BillNo. 250 [sections 94-8-110 and 94-8-110.11 enacted by the 44th Legislature of the Stateof Montana and made effective on April 14, 1975, 

### isunconstitutional inpart by effecting to

### restrict Citiesand 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, isvalid.

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

### 1. Whether proper certification to thisCourt and notice tothe Attorney General pursuant toRule 38, Montana Rules ofAppellate Civil Procedure, was given? 2. Whether sections 94-8-110 and 94-8-110.1, R.C.M. 1947, asamended, areunconstitutional inview 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 toobscenity 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 

### littlemerit. 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 toruleon constitutional issuesraised on appeal because certification tothis Court and notification tothe Attorney General had not been given pursuant toRule 38. Requiring such notice tothe state's chief legal officer 

### is to enable him to appear indefense of the challenged legislative acts. In thismatter 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 toprepare for the hearing held February 

### 4, 1976. The spirit of the rule appears satisfiedwhen such opportunity toprepare for the constitutional challenge is given. Accordingly, 

### we reject the 

### emphasis which appellant seeks toplace on the immediacy of the notice required by Rule 38. We next consider whether the statutes inquestion, sections 94-8-110 and 94-8-110.1, R.C.M. 1947, areconstitutionally invalid when viewed in the light of recent United States Supreme Court obscenity decisions. In thisregard, the districtcourt made these conclusions of 

### law:"I. That themost recent United States Supreme Court decisions rendered inthe area of obscenity provides for 'basic guidelines' tobe applied in the determination of 'obscene material', to-wit: (a)whether the average person applying contemporary community standards would find thework, taken as

### a whole, appeals tothe prurient interest 

## * * 

## *. Millerv. 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 toestablish statewide standards by 

### its limitation on themunicipalities of the State of Montana from passing more restrictive ordinances than the said State 

### law 

### - and 

### is unconstitutional tothat 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 tothe district court's conclusion of 

### law I1 which is basic tothe constitutional issue in this

### matter,

we can find no basis in the law on obscenity asarticulated by the Supreme Court for such a limiting definition of "community standards" asthat arrived atby the district court. Further, the district court has not related this limiting definition of "community standards" tothe Constitution which 

### it claims 

### is violated by the state statutes. Statewide standards for obscenity 

### are constitutionally permissible. Millerv. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L Ed 2d 419. The United States Supreme Court inKaplan 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 stateof California"', 

### as opposed to 'national standards,' areconstitutionally adequate to establishwhether a work is obscene. 

## * * *" (Emphasis added.) In United Statesv. 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 tous on the DistrictCourt'ssummary dismissal of the forfeiture action, no determination of the obscenity of thematerials involved has been made. We have today arrived atstandards for testing the constitutionality of state legislation regulating obscenity. See Miller v. California, 413 U.S. 

### at 23, 25, 37 L Ed 2d at431. 

## * 

## * *" (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 Statesv. Danley, 523 F.2d 369, 370, DistrictJudge Russell E. Smith, stated: "Injudging 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 Stateof Oreqon. While under Miller

### v. California, supra, takerin conjunction with United Statesv. 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 todefine the 

### state 

### as a community, it 

### is clear from Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887. 41L Ed 2d 590 (1974), that cbnsideration ma; be given to standards without the 

### state. United Statesv. Harding, 507 F.2d 294 (10thCir. 1974), cert. denied, U.S. 

## , 95 

### S.Ct. 1437, 43 L Ed 2d 679 (1975); United Statesv. Miller, 505 F.2d 1247 (9thCir. 1974)

# ." (Emphasis added.) The district court's conclusion No. I1 finds no support inthe constitutional 

### lawon obscenity. A judgment based on an

erroneous conclusion of the 

### lawcannot stand. We next consider the third issue raised by this appeal-- whether themunicipal corporation has the power toregulate obscenity notwithstanding a legislative enactment which expressly preempts the field. Since there areno 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 inArticleXI,Section 6, which states inpart: "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 cityordinance here which 

### is admittedly in conflictwith 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 

### isreversed.



# / /Chief Justice