OPINION
W. M. LEECH, Special Justice.
The two above styled cases were consolidated for oral arguments because the same issues were involved in both. It results, therefore, that only one opinion will be necessary to dispose of both cases.
The first of the two causes involved in this opinion arose out of proceedings which began in Memphis, Tennessee, on [259]*259March 28, 1970, when the District Attorney for the Fifteenth Judicial Circuit petitioned the Criminal Court of Shelby County for an injunction to prohibit the exhibition, display or possession of alleged obscene material, namely the movie film "Without a Stitch”. On the same date, a temporary injunction was issued against said film. This injunction was issued ex parte and Art Theater Guild had no notice of the proceeding nor an opportunity to be heard before the restraint. Subsequently, on July 30, 1970, the trial judge found the film obscene and in violation of T.C.A. §§ 39-3003 to 39-3007; and therefore issued a permanent injunction. Thereupon, defendant, Art Theatre Guild, appealed direct to this Court wherein we sustained the trial court. Our decision was appealed to the United States Supreme Court and on June 25, 1973, that Court vacated our judgment and remanded the cause for further consideration in light of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).
The companion case involved in this opinion arose out of proceedings which began in Knoxville, Tennessee on February 26, 1972, when the District Attorney for the Third Judicial Circuit petitioned the Knox County Criminal Court for a temporary restraining order to prohibit the further showing of the alleged obscene film “Cry Uncle.” Said order was issued on the same date ex parte and without notice to the defendant, National General Corp. Subsequently, on March 6, 1972, a temporary injunction was issued and on May 3, 1972, the film was found to be obscene and was permanently enjoined. The film was also ordered destroyed pursuant to T.C.A. § 39-3005.
On June 1, 1972, Cambist Films, Inc., appellant herein, filed a petition alleging it was the owner of the film and prayed it be made a party-defendant under Rule 19 of the Tennessee Rules of Civil Procedure. On June 2, 1972, without objection, Cambist Films, Inc. was made a party-defendant and appeal was then brought direct to this Court. After hearing arguments, we sustained the trial court. A second petition to rehear was filed and granted on July 24, 1973 so this Court could reevaluate our previous decision in light of Miller, supra.
The pivotal issue involved in the two cases herein is whether our definition of obscenity as set out in T.C.A. § 39-3007, is constitutional under the latest pronouncement of the United States Supreme Court in Miller v. California, supra. Our statute provides:
“39-3007. Definition of obscene material. — The following definition shall control in construing §§ 39-3003 — 39-3008:
Obscene material: Any material, matter, object or thing, including but not limited to, any written or printed matter, film, picture, drawing, or any object or thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and if in addition, (a) it is patently offensive to the public or if it goes substantially beyond customary limits of candor in describing or representing such matters, and (b) it is devoid of any literary, scientific or artistic value and is utterly without social importance. The phrase ‘predominant appeal’ shall be considered with reference to ordinary persons.”
This definition and the definition given by the United States Supreme Court in Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), are almost identical. In Memoirs, the plurality held that in the definition-:
“ . . . as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual [260]*260matters; and (c) the material is utterly without redeeming social value.” Id., 383 U.S. at 418, 86 S.Ct. at 977.
In Miller, the Memoirs test was applied until the case reached the Supreme Court. Thereupon, Chief Justice Burger, writing for the majority, stated that the California statute incorporating the three-pronged test of Memoirs “has been abandoned as unworkable by its author and no member of the Court today supports the Memoirs formulation.” The clear repudiation of Memoirs is further evidenced by the Court’s own language, wherein they stated:
“While Roth [354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed. 1498] presumed ‘obscenity’ to be ‘utterly without redeeming social value.’ Memoirs required that to prove obscenity it must be affirmatively established that the material is ‘utterly without redeeming social value.’ Thus, even as they repeated the words of Roth, the Memoirs plurality produced a drastically altered test that called on the prosecution to prove a negative, i. e., that the material was ‘utterly without redeeming social value’ a burden virtually impossible to discharge under our criminal standards of proof.”
Thus, in repudiating the Memoirs test, it is clear that the Supreme Court has also repudiated T.C.A. § 39-3007 because the two tests or definitions are identical.
This latter conclusion is further buttressed by comparing California’s definition of obscenity with that of this jurisdiction. The statute found unconstitutional by Miller, Section 311 of the California Penal Code, provides in pertinent part that:
“(a) ‘Obscene’ means that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social importance.
“(b) ‘Matter’ means any book, magazine, newspaper or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation or any statue or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines or materials.”
By even a casual perusal of both Section 311 of the California Penal Code and T.C. A.
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OPINION
W. M. LEECH, Special Justice.
The two above styled cases were consolidated for oral arguments because the same issues were involved in both. It results, therefore, that only one opinion will be necessary to dispose of both cases.
The first of the two causes involved in this opinion arose out of proceedings which began in Memphis, Tennessee, on [259]*259March 28, 1970, when the District Attorney for the Fifteenth Judicial Circuit petitioned the Criminal Court of Shelby County for an injunction to prohibit the exhibition, display or possession of alleged obscene material, namely the movie film "Without a Stitch”. On the same date, a temporary injunction was issued against said film. This injunction was issued ex parte and Art Theater Guild had no notice of the proceeding nor an opportunity to be heard before the restraint. Subsequently, on July 30, 1970, the trial judge found the film obscene and in violation of T.C.A. §§ 39-3003 to 39-3007; and therefore issued a permanent injunction. Thereupon, defendant, Art Theatre Guild, appealed direct to this Court wherein we sustained the trial court. Our decision was appealed to the United States Supreme Court and on June 25, 1973, that Court vacated our judgment and remanded the cause for further consideration in light of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).
The companion case involved in this opinion arose out of proceedings which began in Knoxville, Tennessee on February 26, 1972, when the District Attorney for the Third Judicial Circuit petitioned the Knox County Criminal Court for a temporary restraining order to prohibit the further showing of the alleged obscene film “Cry Uncle.” Said order was issued on the same date ex parte and without notice to the defendant, National General Corp. Subsequently, on March 6, 1972, a temporary injunction was issued and on May 3, 1972, the film was found to be obscene and was permanently enjoined. The film was also ordered destroyed pursuant to T.C.A. § 39-3005.
On June 1, 1972, Cambist Films, Inc., appellant herein, filed a petition alleging it was the owner of the film and prayed it be made a party-defendant under Rule 19 of the Tennessee Rules of Civil Procedure. On June 2, 1972, without objection, Cambist Films, Inc. was made a party-defendant and appeal was then brought direct to this Court. After hearing arguments, we sustained the trial court. A second petition to rehear was filed and granted on July 24, 1973 so this Court could reevaluate our previous decision in light of Miller, supra.
The pivotal issue involved in the two cases herein is whether our definition of obscenity as set out in T.C.A. § 39-3007, is constitutional under the latest pronouncement of the United States Supreme Court in Miller v. California, supra. Our statute provides:
“39-3007. Definition of obscene material. — The following definition shall control in construing §§ 39-3003 — 39-3008:
Obscene material: Any material, matter, object or thing, including but not limited to, any written or printed matter, film, picture, drawing, or any object or thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and if in addition, (a) it is patently offensive to the public or if it goes substantially beyond customary limits of candor in describing or representing such matters, and (b) it is devoid of any literary, scientific or artistic value and is utterly without social importance. The phrase ‘predominant appeal’ shall be considered with reference to ordinary persons.”
This definition and the definition given by the United States Supreme Court in Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), are almost identical. In Memoirs, the plurality held that in the definition-:
“ . . . as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual [260]*260matters; and (c) the material is utterly without redeeming social value.” Id., 383 U.S. at 418, 86 S.Ct. at 977.
In Miller, the Memoirs test was applied until the case reached the Supreme Court. Thereupon, Chief Justice Burger, writing for the majority, stated that the California statute incorporating the three-pronged test of Memoirs “has been abandoned as unworkable by its author and no member of the Court today supports the Memoirs formulation.” The clear repudiation of Memoirs is further evidenced by the Court’s own language, wherein they stated:
“While Roth [354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed. 1498] presumed ‘obscenity’ to be ‘utterly without redeeming social value.’ Memoirs required that to prove obscenity it must be affirmatively established that the material is ‘utterly without redeeming social value.’ Thus, even as they repeated the words of Roth, the Memoirs plurality produced a drastically altered test that called on the prosecution to prove a negative, i. e., that the material was ‘utterly without redeeming social value’ a burden virtually impossible to discharge under our criminal standards of proof.”
Thus, in repudiating the Memoirs test, it is clear that the Supreme Court has also repudiated T.C.A. § 39-3007 because the two tests or definitions are identical.
This latter conclusion is further buttressed by comparing California’s definition of obscenity with that of this jurisdiction. The statute found unconstitutional by Miller, Section 311 of the California Penal Code, provides in pertinent part that:
“(a) ‘Obscene’ means that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters and is matter which is utterly without redeeming social importance.
“(b) ‘Matter’ means any book, magazine, newspaper or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation or any statue or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines or materials.”
By even a casual perusal of both Section 311 of the California Penal Code and T.C. A. § 39-3007, supra, it is clear that they are for all practical purposes identical. Thus, for purposes of the instant cases, whatever Miller said concerning California’s statute applies equally to T.C.A. § 39-3007 and we are bound thereby.
In Miller, the Court set out the basic test for obscenity as follows:
“(a) whether 'the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the pruient interest. (Citing cases), (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the ‘utterly without redeeming social value’ test of Memoirs v. Massachusetts, supra, 383 U.S. at 419, 86 S.Ct. 975 (1966); that concept has never commanded the adherence of more than three Justices at one time.” (Emphasis added).
This jurisdiction’s test which incorporates the “utterly without social importance” term and which fails to specifically define any sexual conduct does not comply with the Supreme Court’s test. Thus, it must be obvious, even to laymen, that T.C. A. § 39-3007 is unconstitutionally vague and over-broad.
[261]*261By implication, the State urges this Court to take the examples in Miller and construe our statute as incorporating those examples, rather than holding it unconstitutional.1
The authority, by which this could be accomplished is said to be found in footnote 7 of United States v. 12 200-foot Reels, 413 U.S. 123, 93 S.Ct. 2665, 32 L.Ed.2d 500 (1973). However, a careful examination of footnote 7 indicates that the United States Supreme Court merely said that they, as the ultimate construer of Federal legislation may construe, if they so desire, existing language to comply with Miller. However, more importantly that footnote indicates that Congress should specifically enunciate the “hard core” depictions of sexual conduct as quickly as possible. In view of this latter reading of footnote 7, we fail to find any basis for doing anything other than holding T.C.A. § 39-3007 unconstitutional and leaving it to the legislature to adopt a new obscenity statute which fully complies with all the requisites of Miller v. California, supra. Moreover, for this Court to do anything more would have the effect of our rewriting Tennessee’s present obscenity statute. The function of this Court is to interpret a statute against the constitution of this State and that of the United States and we will not and cannot usurp the prerogatives of the legislature by supplying essential elements to a statute which have been omitted by that body.
In conclusion, therefore, pursuant to the clear holding of the United States Supreme Court in Miller v. California, supra, we declare and hold T.C.A. § 39-3007 to be unconstitutional. Having so held, we pretermit all other issues involved herein and reverse the holdings of the respective trial courts involved in this opinion; remanding these cases to the trial courts for disposition in a manner not inconsistent with this opinion.
DYER, C. J, and CHATTIN, Mc-CANLESS, and FONES, JJ., concur.