### 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, Judgepresiding. 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 

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.J

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# -1982Mr. JusticeFrank B. Morrison, Jr., delivered the Opinion of the Court.

On December 30, 1981, a peremptory writ of mandamus was issued by the Eighteenth Judicial DistrictCourt 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 applicationswere 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. Thismatter 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 PrizeAward of Cash; and Count I1 

### - Operating a Prohibited Gambling Game, the Game of Keno. An agreementwas later reached whereby the defendants filed an action for declaratory judgment to determine the legality of the game of Keno under the Bingo and RafflesAct, 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. Theparties agreed to sever the Keno issue from theelectronic 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, thewrit 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: "Aplayer 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-selectingdevice 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 randomlymixed. 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. "Thenumbers 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 selectedwill be lit on the board. Theplayer then compares the card that he marked with the numbers selected. "Aplayer 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 lineunder mark fourmatches 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 RafflesAct 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),170Mont. 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 [Stateof Montana] concede said game is lawful under the Bingo and Raffle Law of 1974." 170Mont. 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), 144Mont. 95, 394 P.2d 753,we held:

# ".

. .ithas 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." 

### 144Mont. 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 Kenomachines. Itwas themost 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 agreewith the majority opinion upholding the legality of Keno. We upheld electronic keno in Treasure State Games, Inc. v. State of Montana (19761,170Mont. 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 RafflesAct 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 forbidsplaying either bingo or keno formoney 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 Courtwith 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-electionpossibilities 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 formoney prizes. It is common knowledge in this state that keno is played with the expectation that a winner will receivemoney if he wins. But what nost people do not understand is that it is illegal to play formoney or to pay money to those who win keno games. -6-During the oral argument of this case, the attorneys forboth sidesagreed that it was illegal for anyone who 

### - runs keno games topay cash prizes. In fact, they agreed it



### -- --- was expressly prohibited by statute, namely section 23-5-412, PKA. That statuteprovides: "Bingo prizes [which include Keno forpurposes here] must be intangible personal property only and not inmoney, cash, stocks, bonds, evidences of indebtedness, orotherintangiblepersonal property and must not exceed thevalue of $100 for each individual bingo award. The price for an individualbingo (keno) card shall not exceed 50 cents. It shallbe unlawful to, inany manner, combine any awards so as toincrease the ultimate value of such award." This statutehas been ineffect since 1974 and I have

no doubt thatkeno has been played ina greatmany establishments inMontana since that time. This statutehas, however, been totally ignored by the county attorneys of this state. Why it has been ignored isonly a question each county attorney can

answer who permits keno tobe played inhis county for cahh or money prizes. It ismore than a little difficult forme tobelieve that theseprosecutors truly have equal justice inmind when they so arrogantly failtoenforce the gambling laws. Whether keno isplayed for cash ormoney prizes is not my concern. What ismy concern is that the statuteforbids it and yet those same county attorneyswho prance so arrogantly on their white steeds, have closed their eyes tothismost open violation of the lawof this state. /---',..