Request By:
Mr. Tom Clinton
Editor
The Messenger
221 So. Main Street
P.O. Box 529
Madisonville, Kentucky 42431
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You question whether the Fiscal Court of Hopkins County has the authority to enact a pornography ordinance. The ordinance purports to prohibit the distribution, visible display, preparation, publication, printing, or exhibiting of obscene matter in Hopkins County. It goes into elaborate definitions of the major terms employed in the ordinance, including the terms, "obscene" , "sexual conduct", "prurient", etc.
In Fiscal Court v. City of Louisville, Ky., 559 S.W.2d 478 (1977), the Supreme Court of Kentucky established the principle that all power exercised by a fiscal court must be expressly delegated to it by statute.
The court, in emphasizing the necessity for a showing of an express delegation of power to a fiscal court, wrote that ". . . . while the General Assembly may grant governmental power to counties it must do so with the precision of a rifle shot and not the casualness of a shotgun blast." (Emphasis added). With that as the measuring stick, we find no express delegation of the authority to legislate on obscenity or pornography in KRS 67.080. As relates to KRS 67.083, the Home Rule statute, we are unable to find any express delegation of the power to enact pornography laws.
In 1974 the General Assembly enacted, as a part of the state penal code, a group of statutes, KRS 531.010 through 531.080, treating specifically the criminal subject of pornography. Those statutes deal with definitions, distribution of obscene matter, distribution of obscene matter to minors, using minors to distribute obscene material, advertising obscene material, promoting sale of obscenity, exemptions, and special verdict. On the face of it, we are inclined to believe that the General Assembly has preempted the field of legislation on pornography. In addition, the General Assembly in 1978 added to the criminal law of pornography several sections dealing with the sexual exploitation of minors (KRS 531.310 to 531.370) (Acts 1978, Ch. 219). See Western Corp. v. Commonwealth, Ky., 558 S.W.2d 605 (1977), upholding the constitutionality of KRS 436.101, the state obscenity statute, which was repealed in 1974 and written into KRS Chapter 531. In that case the Western Corporation, and two of its employees, were charged with four counts of exhibiting an allegedly obscene movie entitled "Deep Throat." The court said that they failed to find any serious literary, artistic, political or scientific value in the picture. Thus the Supreme Court of Kentucky ruled that the exhibited material was obscene and violative of contemporary community standards under the tests prescribed in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973). The case of Western Corporation v. Commonwealth is cited within the general context of the state's exercise of its police power to promote order, health, morals and the general welfare of its citizens, within constitutional limits. 16 C.J.S., Constitutional Law, §§ 174 and 175, p.p. 889-906.
While the police power rests with the individual states, and is primarily vested in state legislatures, the police power may be exercised by subordinate governmental divisions, or political subdivisions, provided that the state has delegated such authority to the political subdivision.
In Bosworth v. City of Lexington, 277 Ky. 90, 125 S.W.2d 995 (1939) 1000, the court wrote this, in the context of a zoning matter, about police power:
The people of every state have the inherent right to pass laws for the public safety, health, morals, and general welfare. The police power rests in the Legislature of the state, and no subdivision of the state may exercise that power except through a grant made by the people of the state through its legislative branch. * * *
In addition, a state may not by contract or otherwise abdicate or bargain away its police power. Southern Bell Tel. & Tel. Co. v. Commonwealth, Ky., 266 S.W.2d 308 (1954).
CONCLUSION
While the police power may be exerted to preserve and protect the public morals, it is our opinion that the General Assembly of Kentucky has never delegated the authority to counties, through their fiscal courts, to enact ordinances relating to obscenity or pornography. However, there are several state criminal statutes in this area which can be enforced by local prosecutors.