Federal Vis a Vis State Court Construction - The United States Supreme Court has said that while it must leave to the state courts the construction of state legislation, the federal courts have a duty to authoritatively construe federal statutes. The United States Supreme Court maintains that it lacks jurisdiction to authoritatively construe state legislation, but it believes that it is the final arbiter of whether a state statute violates the Federal Constitution. Where the statute or ordinance is unambiguous, there may be no room for a narrowing construction by the state courts. While a federal court may not authoritatively construe a local ordinance, it sometimes achieves a comparable result by holding certain sections constitutional and others not. It is possible that where a federal court has declared an obscenity statute unconstitutional, a state court may salvage it by an authoritative construction not available to the federal court.

Discerning the Legislative Intent - The primary rule of construction is that the intention of the legislature must be discerned, if possible, and be given effect even if inconsistent with the strict letter of the statute. The spirit of the legislation prevails over the letter. In order to effectuate that intent, the court may alter, supply, strike out or modify words and correct obvious mistakes. The statute must receive a reasonable interpretation so as to avoid an absurd consequence or ridiculous result. Rigid interpretations not intended should not be applied. Words having well known legal or dictionary meanings will be so interpreted in the absence of a contrary intention.

Constitutional Construction Sought - Where a statute is open to constructions, one of which would render it constitutional and the other not, the constitutional construction is to be applied. The basic rule of construction is to save and not destroy.

Strict Construction - A criminal statute should receive a strict construction, but it must nevertheless be reasonable, keeping in mind the legislative intent. The rule of strict construction cannot be allowed to defeat the evident legislative design. While in criminal statute words are not to be enlarged to include other conduct of like, equal or greater atrocity not fairly included in the language of the act, the rule of strict construction does not mean that a reasonable doubt as to interpretation must be resolved in favor of the accused. Finally, affirmative defenses are not to be construed in favor of the accused.

Severability - If a statute is severable, it should not be struck down on its face. Only the unconstitutional portion should be invalidated. A phrase or section of an obscenity statute may be excised if the remaining parts can stand on their own. The existence of a severability clause in a statute or ordinance strengthens the ability of the courts to sever the invalid sections.

Authoritative Construction is not Legislative - A court may construe a statute without usurping legislative authority, but no court under the guise of construction may extend, enlarge or otherwise change the meaning of a statute. The device may be used to cure vagueness or to supply time limits.

Miller Construction of Existing Obscenity Statutes - When the United States Supreme Court set out to establish concrete guidelines for determining the validity of obscenity laws in the landmark case of Miller v. California, 413 U.S. 15 (1973) it said, "Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive 'hard core' sexual conduct specifically defined by the regulating state law, as written or construed." The Supreme Court in Ward v. Illinois, 431 U.S. 767 (1977) also indicated that a construction made prior to Miller was sufficient and numerous courts have agreed that obscenity statutes existing at the time of Miller may be authoritatively construed to conform with that decision. These Miller constructions include holdings to the effect that failure to spell out the sexual conduct in the statute is not fatal since it can be supplied by construction nor is the failure to use the phrase "patently offensive" fatal. In addition, failure to define the phrase "obscene conduct" can be cured by construction.

Scienter may be Supplied - It has been held on various occasions that while scienter is a constitutional ingredient of a valid obscenity law, it may be implied and made part of the statute or ordinance by construction. An indictment must nevertheless charge scienter as part of the crime even where not specifically mentioned in the statute.

Preemption - While not strictly a construction problem, preemption of local obscenity authority frequently arises by interpretation of the legislative intent by the application of rules of construction.

Legislative History may be Used Where Statute Ambiguous - Where the meaning of a statute or ordinance is clear and unambiguous, resort to legislative history is unnecessary but there are times where resort to legislative history may be had. A vetoed bill may be part of that history.