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:
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QFI Y
.J - 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 ~ i l l i a m
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 enclos-
ed 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 selec-
ted 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 sel-
ected 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 allow-
able in Montana under the Bingo and Raffle Law
of 1974.
"12. That the game of Keno is currently play-
ed 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
! r Justice Daniel J. Shea, specially concurring:
4.
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 t h e o r a l argument o f t h i s c a s e , t h e a t t o r n e y s
f o r b o t h s i d e s a g r e e d t h a t i t was i l l e g a l f o r anyone who
-
-- games - - - a s h p r i z e s .
r u n s keno t o pay c I n f a c t , they agreed it
was e x p r e s s l y p r o h i b i t e d by s t a t u t e , namely s e c t i o n 23-5-412,
PKA. That s t a t u t e p r o v i d e s :
"Bingo p r i z e s [which i n c l u d e Keno f o r p u r p o s e s
h e r e ] must be i n t a n g i b l e p e r s o n a l p r o p e r t y o n l y
and n o t i n money, c a s h , s t o c k s , bonds, e v i d e n c e s
of i n d e b t e d n e s s , o r o t h e r i n t a n g i b l e p e r s o n a l
p r o p e r t y and must n o t exceed t h e v a l u e o f $100
f o r e a c h i n d i v i d u a l bingo award. The p r i c e f o r
an i n d i v i d u a l b i n g o (keno) c a r d s h a l l n o t exceed
50 c e n t s . I t s h a l l be u n l a w f u l t o , i n any manner,
combine any awards s o a s t o i n c r e a s e t h e u l t i m a t e
v a l u e o f such award."
T h i s s t a t u t e h a s been i n e f f e c t s i n c e 1974 and I have
no doubt t h a t keno h a s been p l a y e d i n a g r e a t many e s t a b l i s h m e n t s
i n Montana s i n c e t h a t t i m e . T h i s s t a t u t e h a s , however, been
t o t a l l y i g n o r e d by t h e county a t t o r n e y s of t h i s s t a t e . W y it
h
h a s been i g n o r e d i s o n l y a q u e s t i o n e a c h c o u n t y a t t o r n e y can
answer who p e r m i t s keno t o be p l a y e d i n h i s county f o r cahh o r
money p r i z e s .
I t i s more t h a n a l i t t l e d i f f i c u l t f o r me t o b e l i e v e
t h a t t h e s e p r o s e c u t o r s t r u l y have e q u a l j u s t i c e i n mind when
t h e y s o a r r o g a n t l y f a i l t o e n f o r c e t h e gambling laws. Whether
keno i s p l a y e d f o r c a s h o r money p r i z e s i s n o t m c o n c e r n .
y What
i s m c o n c e r n i s t h a t t h e s t a t u t e f o r b i d s i t and y e t t h o s e same
y
c o u n t y a t t o r n e y s who p r a n c e s o a r r o g a n t l y on t h e i r w h i t e s t e e d s ,
have c l o s e d t h e i r e y e s t o t h i s most open v i o l a t i o n of t h e
l a w of t h i s s t a t e .
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