*1 COUNTY, GALLATIN a Political Subdivision v. D & R Montana, State Appellant, Plaintiff and VENDING, INC., MUSIC AND Corporation, a Montana Respondent. and Defendant No. 82-153.
Submitted Nov. 1982. Decided Dec. 1982. 998. Racicot, Gen., Marc argued, Atty. Asst. Prosecutor Bоzeman, White, County Atty., Services, Helena, Donald appellant. plaintiff and Poston, Poston, argued, He- Harrison, & John Loendorf Goetz, Dunn, argued, lena, Goetz, James & Madden Bozeman, respondent. Frost, & for defendant Wellcome *2 opinion the of the MORRISON delivered MR. JUSTICE Court. 30, 1981, of mandamus peremptory writ
On December order- District Court Eighteenth the Judicial was issued County of Gallatin the Sheriff and Commissioners ing Vending’s D & R and immediately accept to Music County operate Keno for licenses to Lounge’s applications Cand M were in applications the to issue such licenses games and of mandamus the writ County appeals now order. Gallatin conclusions of law of fact and accompanying findings and legal. We affirm. Keno to be declaring separate of three actions. a consolidation This matter 1981, D 4, naming & County August filed an action Gallatin seeking a declara- Vending R as defendant and Music and A second legality the of Keno. tory judgment regarding of electronic concerning legality was included count poker machines. 6, 1981, Vending R and D & Music and August
Then on Lounge, filed a mandamus ac- C M Gary Ferguson, d/b/a to issue the Sheriff County compel to Gallatin against tion operate games. licenses to them charges 6, 1981, County filed criminal Gallatin August On them Young, charging Hougen and Thomas Roger against Prize Award of Unlawful Making an with: Count I— Gambling Cash; Operating a Prohibited and Count II— later reached Game, agreement An was Game of Keno. declaratory judg- action for filed an whereby the defendants under of the legality ment to determine Act, Part Chapter Title Raffles and charges criminal MCA, for the dismissal return thеm. against parties 24, 1981,
Counsel for all agreed on November consolidation of the three On actions. December 1981, hearing cases came for before Judge William Coder. The parties agreed sever the Keno issue from the poker issue and submit the Keno issue on mo- summary judgment. tion for Following the hearing, Judge Coder declared Keno to be and issued the writ of appeal decision, mandate. In its of that Gallatin 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 аnd Vending Gary A. Ferguson, C M d/b/a Lounge, the writ mandamus commanding the Sheriff and County Commissioners of Gallatin County accept re- spondents’ applications licenses to conduct Keno gаmes?
The parties stipulated to the following description of the game of Keno:
“A Player will mark from one to ten playing numbers on a card, which is numbered 1 from to 80 consecutively. Thе player pay will 50 per cents card playing to enter the card game. into the The device is an keno-selecting enclosed apparatus bubble-like containing pong 80 balls ping marked 80, with the 1 numbers through consecutively.
“Air is forced into the pong enclosure to the ping cause balls to be randomly mixed, mixed. As the balls a being are opened small tube is to allow some randomly balls to through bounce the opening and into the tube. The size of the tube 20 allows balls be per game. selected played
“The numbers during be the are taken game from the 20 balls that have entered the tube. The 20 num- bers from the a displayed selected balls are on number board near the keno The numbers selected device. will compares lit on the board. The he player then the card that with marked the numbers selected.
“A player has a number the winning card a sufficient of 412 he on his match the numbers se-
numbers marked card thrеe Example: ‘and then there are by lected the device. column, hand, “mark;” it says On the left middle columns. column, “match;” “pay.” And and the the first right-hand two, cents, pay number is 50 mark four matches linе under 3, line, pay mark number match number on the second ” . .’ Tr. pp. 10-11. $2. legal as certain Raffles Act authorizes Bingo The 23-5-411, MCA. One of those games of chance. Section “games chanсe” is: of “ are awarded on the of des- ‘bingo,’ prizes which basis symbols a card which conform to ignated numbers or random;” at Section 23-5- symbols numbers or selected 402(1)(a), MCA. par- the
Clearly, stiрulated description legal game in this fits the above definition ties action Keno numbers on a card. The Bingo. Players designate of players’ If the des- operator then selects random numbers. num- operator’s selected ignated numbers conform bers, Therefore, Bingo as de- prizes awarded. Keno are Act, legal. and is Bingo in the fined Games, Montana Inc. v. State In Treasure State of (1976), the le- we considered 170 Mont. fol- we cited the opinion, of Keno. gality of District Court: lowing of fact findings of of fits within the definition game “11. That Keno under the is allowаble Montana game and such Bingo of 1974.” and Raffle Law played Mon currently “12. That said concede the defendants tana and Montana] [State of 1974.” and Raffle Law game is lawful under P.2d аt 1009. Mont. at *4 legality as of concession upon the State’s Based simu- Keno, legal to be a electronic Keno we held electronic game hold the Today, specifiсally we game. of a legal lation Raffles Act and under Games, supra. in Treasure State reaffirm our decision Finally, remedy. the writ of mandamus proper was the In State ex rel. v. City Konen Butte (1964), 144 Mont. of 394 P.2d we held:
“. . .it
pointed
has been
out
against
that mandamus
public
body
remedy
officer
is
adequate
or
a more
than a
declaratory judgment,
per
because mandаmus commands
formance,
declaratory
while a
judgment
simply pronounces
duty
performed.”
to be
The instant writ of mandamus was directed toward public officers, the Sheriff and the Commissioners. It com- manded them to accept respondents’ for li- applications operate censes to adequate machines. It was the most remedy available.
The decision of the District is Court affirmed.
MR. CHIEF JUSTICE HASWELL аnd JUSTICES DALY, HARRISON, WEBER, SHEEHY AND concur. SHEA,
MR. JUSTICE specially concurring: I agree with majority opinion upholding legality of Keno. Games, upheld We Treasure State electronic keno Inc. v. State Montana (1976), Mоnt.
1008, as the opinion notes, and electronic keno but an version the basic I specially of keno. note upheld that keno was permissible as under the Bingo and Raffles Act of however, 1974. What I cannot understand the failure of the county prosecutors in this State enforce provisions of the expressly Act which forbids either playing bingo money or prizes. kenо
Recently the association county attorneys of this state have assumed a vigilante near role their efforts to enforce a new law and order theme in this state-apрarently their law and their general order. the last election those county attorneys attacked vengeance, this Court with a screaming in effect that this Court was soft may crime —whatever mean. equally
But it is clear same prosecutors, that these their *5 may powers efforts to offend the that who ad- not local possibilities may or who con- versely affect their re-election eyes their to gambling fer оther benefits on those who close violations, they which have violations must know permitted daily vir- respective in their counties on a occurring are hourly notably prosecutоrs Most these have tually basis. prohibits Act which failed to enforce money prizes. for bingo being played either or keno from knowledge played It is common in this state that keno is will еxpectation money with the that a winner receive he it is that is people wins. But what most do not understand win money or to those who play money pay for illegal games. keno сase, attorneys for
During argument oral of this anyone who runs it for agreed illegal both sides was fact, they it was prizes. agreed games pay keno cash statute, 23-5-412, expressly namely sеction prohibited provides: MCA. That statute purposes Keno for
“Bingo prizes include here] [which in property only and not tangible personal be in must indebtedness, stocks, cash, bonds, or money, evidences of exceed the property and must not intangible personal other The for bingo price award. value of for each individual $100 (keno) 50 cents. It shall not exceed bingo an individual card to, manner, any awards so any combine shall be unlawful value of such award.” as to increase the ultimate I have no effect since 1974 and This statute has been many great in a establish- played has been doubt that keno has, how- This statute since that time. ments Montana attorneys of this county ever, by the totally ignored been each оnly question is it has been Why ignored state. played to be permits who keno county attorney can answer county money prizes. or in his cash for that these me to believe than a littlе difficult for It is more they so in mind when equal justice prosecutors truly have keno laws. Whether gambling fail enforce the arrogantly What my concern. money is not prizes or played cash my yet concern is that the statute forbids it and those county attorneys prance arrogantly same who so on their eyes open steeds, white have closed their to this most viola- tion of the law of this state.