IN THE SUPREME COURT OF THE STATE OF MONTANA 

GALLATIN COUNTY, a political 

subdivision of the State of 

Montana, 

Plaintiff and Appellant, 

D & R MUSIC AND VENDING, INC., 

a Montana Corporation, 

Defendant and Respondent. 

Appeal from: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin 

Honorable H. William Coder, Judge presiding. 

Counsel of Record: 

For Appellant: 

Marc Racicot argued, Assistant Attorney General, County 

Prosecutor Services, Helena, Montana 

Donald White, County Attorney, Bozeman, Montana 

For Respondent : 

Harrison, Loendorf & Poston, Helena, Montana 

John Poston argued, Helena, Montana 

Goetz, Madden and Dunn, Bozeman, Montana 

James Goetz argued, Bozeman, Montana 

Wellcome & Frost, Bozeman, Montana 

Submitted: November 8, 1982 

Decided: December 9, 1982 

Filed: QF - I' .J Y - 1982 
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of 

the Court. 

On December 30, 1981, a peremptory writ of mandamus was 

issued by the Eighteenth Judicial District Court ordering 

the Sheriff and County Commissioners of Gallatin County to 

immediately accept D & R Music and Vending's and CM Lounge's 

applications for licenses to operate Keno games and to issue 

such licenses if the applications were in order. Gallatin 

County now appeals the writ of mandamus and accompanying 

findings of fact and conclusions of law declaring Keno to be 

legal. We affirm. 

This matter is a consolidation of three separate actions. 

Gallatin County filed an action August 4, 1981, naming D & R 

Music and Vending as defendant and seeking a declaratory 

judgment regarding the legality of Keno. A second count was 

included concerning the legality of electronic poker machines. 

Then on August 6, 1981, D & R Music and Vending and 

Gary Ferguson, d/b/a CM Lounge, filed a mandamus action 

against Gallatin County to compel the Sheriff to issue them 

licenses to operate Keno games. 

On August 6, 1981, Gallatin County filed criminal 

charges against Roger Hougen and Thomas Young, charging them 

with: Count I - Making an Unlawful Bingo Prize Award of 

Cash; and Count I1 - Operating a Prohibited Gambling Game, 

the Game of Keno. An agreement was later reached whereby 

the defendants filed an action for declaratory judgment to 

determine the legality of the game of Keno under the Bingo 

and Raffles Act, Title 23, Chapter 5, Part 4, !4CA, in return 

for the dismissal of the criminal charges against them. 

Counsel for all parties agreed on November 24, 1981, to 

the consolidation of the three actions. On December 14, 

1981, the cases came on for hearing before Judge ~illiam 

Coder. The parties agreed to sever the Keno issue from the 
electronic poker issue and to submit the Keno issue on 

motion for summary judgment. Following the hearing, Judge 

Coder declared Keno to be legal and issued the writ of 

mandate. In its appeal of that decision, Gallatin County 

presents the following issues for our review: 

(1) Whether Keno is a legal game under the Montana 

Bingo and Raffles Act? 

(2) Whether the District Court erred in granting to 

D & R Music and Vending and Gary A. Ferguson, d/b/a CM 

Lounge, the writ of mandamus commanding the Sheriff and 

County Commissioners of Gallatin County to accept respondents' 

applications for licenses to conduct Keno games? 

The parties stipulated to the following description of 

the game of Keno: 

"A player will mark from one to ten numbers on 

a playing card, which is numbered from 1 to 80 

consecutively. The player will pay 50 cents 

per playing card to enter the card into the 

game. The keno-selecting device is an enclosed bubble-like apparatus containing 80 ping 

pong balls marked with the numbers 1 through 

80, consecutively. 

"Air is forced into the enclosure to cause 

the ping pong balls to be randomly mixed. As 

the balls are being mixed, a small tube is 

opened to allow some balls to randomly bounce 

through the opening and into the tube. The 

size of the tube allows 20 balls to be selected per game. 

"The numbers to be played during the game are 

taken from the 20 balls that have entered the 

tube. The 20 numbers from the selected balls 

are displayed on a number board near the keno 

device. The numbers selected will be lit on 

the board. The player then compares the card 

that he marked with the numbers selected. 

"A player has a winning card if a sufficient 

number of the numbers he marked on his card 

match the numbers selected by the device. 

Example: 'and then there are three columns. 

On the left hand, it says "mark"; middle column, 

"match" ; and the right-hand column, "pay. " 

And the first line under mark four matches 

number two, pay is 50 cents, on the second 

line, mark number 5, match number 3, pay 

$2. . . 1 11 Tr. pp. 10-11. 
The Bingo and Raffles Act authorizes as legal certain 

games of chance. Section 23-5-411, MCA. One of those legal 

"games of chance" is: 

"'bingo', in which prizes are awarded on the 

basis of designated numbers or symbols on a 

card which conform to numbers or symbols selected at random; " Section 23-5-402 (1) (a), 

MCA . 

Clearly, the description of Keno stipulated to by the 

parties in this action fits the above definition of the 

legal game of Bingo. Players designate numbers on a card. 

The Keno operator then selects random numbers. If the 

players' designated numbers conform to the operator's selected 

numbers, prizes are awarded. Therefore, Keno is in go as 

defined in the Bingo and Raffles Act, and is legal. 

In Treasure State Games, Inc. v. State of Montana 

(1976), 170 Mont. 189, 551 P.2d 1008, we considered the 

legality of electronic Keno. In that opinion, we cited the 

following findings of fact of the District Court: 

"11. That the game of Keno fits within the 

definition of Bingo and such a game is allowable in Montana under the Bingo and Raffle Law 

of 1974. 

"12. That the game of Keno is currently played in Montana and the defendants [State of 

Montana] concede said game is lawful under the 

Bingo and Raffle Law of 1974." 170 Mont. at 

191, 551 P.2d at 1009. 

Based upon the State's concession as to the legality of 

Keno, we held electronic Keno to be a legal electronic 

simulation of a legal game. Today, we specifically hold the 

game of Keno to be legal under the Bingo and Raffles Act and 

reaffirm our decision in Treasure State Games, supra. 

Finally, the writ of mandamus was the proper remedy. 

In State ex rel. Konen v. City of Butte (1964), 144 Mont. 

95, 394 P.2d 753, we held: 
". . .it has been pointed out that mandamus 

against a public officer or body is a more 

adequate remedy than a declaratory judgment, 

because mandamus commands performance, while 

a declaratory judgment simply Pronounces the 

duty to be performed." 144 Mont. at 102, 394 

P.2d at 757. 

The instant writ of mandamus was directed toward public 

officers, the Sheriff and the County Commissioners. It 

commanded them to accept respondents' applications for 

licenses to operate Keno machines. It was the most adequate 

remedy available. 

The decision of the Distric t is affirmed. 

We Concur: 

"a,+&&&&~ 

Chief ust tide^ 

Justices 
!4r. Justice Daniel J. Shea, specially concurring: 

I agree with the majority opinion upholding the legality 

of Keno. We upheld electronic keno in Treasure State Games, 

Inc. v. State of Montana (19761, 170 Mont. 189, 551 P.2d 

1008, as the opinion notes, and electronic keno is but an 

electronic version of the basic game of keno. I specially 

note that keno was upheld as permissible under the Bingo and 

Raffles Act of 1974. What I cannot understand however, is 

the failure of the county prosecutors in this State to enforce 

the provisions of the Bingo and Raffles Act which expressly 

forbids playing either bingo or keno for money prizes. 

Recently the association of the county attorneys of 

this state have assumed a near vigilante role in their efforts 

to enforce a new law and order theme in this state--apparently 

their law and their order. In the last general election those 

county attorneys attacked this Court with a vengeance, screaming 

in effect that this Co-art was soft on crime--whatever that may 

mean. 

But it is equally clear that these same prosecutors, in 

their efforts not to offend the local powers that be who may 

adversely affect their re-election possibilities or who may 

confer other benefits on those who close their eyes to gambling 

violations, have permitted violations which they must know are 

occurring in their respective counties on a daily and virtually 

hourly basis. Most notably these prosecutors have failed to 

enforce the Bingo and Raffles Act which prohibits either bingo 

or keno from being played for money prizes. 

It is common knowledge in this state that keno is played 

with the expectation that a winner will receive money if he 

wins. But what nost people do not understand is that it is 

illegal to play for money or to pay money to those who win 

keno games. 

-6- 
During the oral argument of this case, the attorneys 

for both sides agreed that it was illegal for anyone who - 

-- runs keno games --- 

to pay cash prizes. In fact, they agreed it 

was expressly prohibited by statute, namely section 23-5-412, 

PKA. That statute provides: 

"Bingo prizes [which include Keno for purposes 

here] must be in tangible personal property only 

and not in money, cash, stocks, bonds, evidences 

of indebtedness, or other intangible personal 

property and must not exceed the value of $100 

for each individual bingo award. The price for 

an individual bingo (keno) card shall not exceed 

50 cents. It shall be unlawful to, in any manner, 

combine any awards so as to increase the ultimate 

value of such award." 

This statute has been in effect since 1974 and I have 

no doubt that keno has been played in a great many establishments 

in Montana since that time. This statute has, however, been 

totally ignored by the county attorneys of this state. Why it 

has been ignored is only a question each county attorney can 

answer who permits keno to be played in his county for cahh or 

money prizes. 

It is more than a little difficult for me to believe 

that these prosecutors truly have equal justice in mind when 

they so arrogantly fail to enforce the gambling laws. Whether 

keno is played for cash or money prizes is not my concern. What 

is my concern is that the statute forbids it and yet those same 

county attorneys who prance so arrogantly on their white steeds, 

have closed their eyes to this most open violation of the 

law of this state. 

/---',..