dissenting:
I join the majority in its holding that electronic poker machines are not authorized by the Montana Card Games Act and that the house cannot compete against a single player. I am convinced that the system of “programmed retainage” built into the machines to assure the profits of the house, does not fall within any authorized games of poker. It is not simply a situation where the house takes a rake from each game, but rather, a situation in which a player must lose a certain percentage of the time to assure the house its profits. That is not poker.
I do not, however, agree with the majority holding that the machines are actually slot machines, and therefore illegal per se. A sufficient factual basis does not exist in the record *149to make that determination.
I further share in the concerns of Justice Morrison in his dissent that the games should not be confiscated and that the owners should be given a reasonable time within which to dispose of them. The owners should not be penalized because of the inconsistent policy of the county attorneys in enforcing the gambling laws.