Request By:
Hon. Roger Wm. Perry
Marshall County Attorney
Marshall County Courthouse
Benton, Kentucky 42025
Opinion
Opinion By: Steven L. Beshear, Attorney General; James H. Barr, Assistant Attorney General
This is in response to your recent letter in which you request an opinion on the constitutionality of the following statute:
KRS 235.200(2)" Except during an authorized race or regatta, which shall include trial runs in preparation for such race or regatta to be conducted at a time and place designated by the division of water enforcement, it shall be illegal to operate any motorboat without an effective exhaust muffling system, or in any manner which renders the exhaust muffling system ineffective in muffling the sound of engine exhaust. "
You state in your letter that the speedboat club at Kentucky Lake, through its attorney, contends that the statute is too vague and therefore unconstitutional since there are no guidelines for a police officer or a jury to determine whether a motorboat has an effective muffling system.
Two annotations on this subject can be found in 49 ALR2d 1202, "Public regulation requiring mufflers or similar noise-preventing devices on motor vehicles, aircraft, or boats"; and in 36 LEd2d 1042 (1974), "Validity, under Federal Constitution, of federal, state, or local antinoise laws and regulations" .
The courts have reached different conclusions on the issue. The only two Kentucky cases cited in the annotations are,
Brachey v. Maupin, 277 Ky. 467, 126 S.W.2d 881, 121 ALR 969 (1939) and
Maupin v. Louisville, 284 Ky. 195, 144 S.W.2d 237 (1940). Both of those decisions deal with unsuccessful challenges to a Louisville ordinance regulating the use of sound trucks within the city. However, neither of the cases deal with vagueness of the statute.
The majority of the courts which have ruled on the issue have decided that similar statutes are not unconstitutionally vague.
People v. Byron, 268 NYS2d 24, 215 N.E.2d 345 (1966);
People v. Merry, 178 NYS2d 454 (1958);
Smith v. Peterson, Cal., 280 P.2d 522, 49 ALR2d 1194 (1955);
Dayton v. Zoeller, Ohio, 122 N.E.2d 28 (1954);
Department of Public Safety v. Buck, Tex., 256 S.W.2d 642 (1953); Ex parte Hall, Okla., 294 P.823 (1931);
People ex rel. Cushing v. Smith, 198 NYS 940, amd. 199 NYS 942 (1923);
State v. Huxford, R.I., 87 A 171 (1913).
These courts have reasoned that mufflers have been so uniformly used to minimize exhaust noise that any ordinary and interested person would have no difficulty in determining whether or not an excessive and unusual noise accompanied the operation of an engine whether in a motor vehicle or a motorboat.
We find the majority view of the courts to be persuasive. We know of no authority where it has been held that the states cannot require motor vehicles or motorboats to have a muffler on exhaust systems. Since the states have such authority, it follows that the states can require the muffling system to be "effective" as required in our statute. An examination of the muffler itself will generally be determinative of whether it is properly sealed and suitable to the use for which it is being employed.