dissenting: I respectfully dissent from those portions of the majority opinion and the syllabi which construe K. S. A. 21-4301 so as to read into that statute the so-called Miller standards for determining obscenity. I also disagree with the majority’s decision to destroy the films in question and to award attorney fees to the prosecution.
The conduct involved here terminated on June 19, 1973. Miller v. California, 413 U. S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607, was decided by the United States Supreme Court on June 21, 1973. That decision modified the constitutional standards enunciated by the court with regard to obscenity in Memoirs v. Massachusetts, 383 U. S. 413, 16 L. Ed. 2d 1, 86 S. Ct. 975, and Roth v. United States, 354 U. S. 476, 1 L. Ed. 2d 1498, 77 S. Ct. 1304. The court noted in Miller that it was not necessarily requiring the states to make wholesale changes in their obscenity statutes. Rather it declared:
“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.” (p. 27.) (Emphasis supplied.)
By reading the Miller standards into 21-4301 the majority is treading on thin judicial ice in two respects. The majority concedes our statute does not contain the Miller standards. The construction given 21-4301 by the majority results in judicial legislation and its application to these appellees creates an ex post facto law. Simply stated, the majority has rewritten the provisions of a penal statute to make it conform to the requirements of a decision of the United States Supreme Court. The task of writing an obscenity statute is for the legislature, not this court. Even if I were to concede that we could so construe 21-4301, I would not concede, that it could be retroactively applied to these appellees. Elementary principles of due process require that a defendant receive prior notice as to the conduct proscribed by a penal statute. It may be argued that since no penal sanctions have been imposed here that there is no problem with retroactively applying Miller. *79This argument overlooks the fact that the court has ordered the films destroyed and has ordered appellees to pay the costs of this action including attorney fees.
The majority notes that other jurisdictions have adopted the view presented in the majority opinion. Likewise, the view expressed in this dissent has been adopted and followed by numerous jurisdictions. See, People v. Tabron,__ Colo._, 544 P. 2d 372; Mahney v. State, 261 Ind. 56, 300 N. E. 2d 66 (on remand); State v. Wedelstedt, 213 N. W. 2d 652 (Iowa); State v. Shreveport News Agency, Inc., 287 So. 2d 464 (La.); Commonwealth v. Horton, 310 N. E. 2d 316 (Mass.); Commonwealth v. MacDonald, 347 A. 2d 290 (Pa.); and Art Theater Guild, Inc. v. State ex rel. Rhodes, 510 S. W. 2d 258 (Tenn.). The rationale for these decisions is similar to that which I have stated above — the amendment of statutes is for the legislature, not the courts.
Further comment is required with regard to the ordered destruction of the films and the award of attorney fees. The majority go one step further than the -trial court and order the films destroyed pursuant to K. S. A. 22-3904 ( 2). The problem with this order is that the statute vests the trial court with a broad discretion in the area of destruction of equipment and materials subject to 22-3901 et seq. The record does not establish an abuse of that discretion nor does the majority find an abuse of discretion. The state maintains only that destruction would be a good punitive measure and that absent destruction the films may be freely shown in other states. What happens in other jurisdictions with these films is of no concern to us. The order of the majority is a blatant usurpation of the trial court’s discretion and goes against all appellate rules for review of discretionary matters. Furthermore, having already stated that an improper construction has been placed on our obscenity statute, destruction is all the more unwarranted and improper.
Finally, I find no authority for the award of attorney fees. The majority seem to find such authority in K. S. A. 22-3904 ( 3). This simply does not apply. The trial court and this court are in agreement that the padlock order sought constitutes an impermissible prior restraint. That appears to be the only application of 22-3901 et seq. relevant to this action. How, then, can the majority utilize these sections to award attorney fees to the prosecution? The simple answer is the facts and circumstances of this case do not logically *80or legally allow an inapplicable nuisance statute to form the basis for an award of attorney fees in a case wherein the sole issue is a determination of obscenity.
Kaul, J., joins in the foregoing dissent.