                                No. 8 8 - 9 1
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1988


MONTANA DEACONESS MEDICAL CENTER,
a non profit corporation,
              Plaintiff and Respondent,
       -vs-
CARL E. JOHNSON,
              Defendant and Respondent,
       and
CITY OF GREAT FALLS, MONTANA,
              Defendant, Third-Party Plaintiff
              and Appellant,
       -vs-
COUNTY OF CASCADE, MONTANA,
              Third-Party Defendant and Respondent.


APPEAL FROM:     District Court of the Eighth Judicial District,
                 In and for the County of Cascade,
                 The Honorable Joel Roth, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                David V. Gliko, City Attorney, Great Falls, Montana
         For Respondent:
                Sharon M. Anderson, Great Falls, Montana
                Patrick L. Paul, County Attorney, Great Falls, Montana
         For Amicus Curiae:
                David J. Patterson, (MACO), Missoula, Montana
                James T. Harrison, Jr., (Sheriffs), Helena, Montapa
                Jim Nugent, (MT League of Cities & Towns), Missoula,
                Montana


                                   Submitted on Briefs:      May 26, 1 9 8 8
                                      Decided:      July 7, 1988

Filed:
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Mr. Justice John C.   Sheehy delivered the Opinion of the
Court.


     In this case we are asked to determine whether the City
of Great Falls (City) or the County of Cascade (County) is
ultimately responsible for medical costs incurred by a person
in the custody of City Police Officers as a result of a
felony arrest.    The District Court of the Eighth Judicial
District, Cascade County, determined that the controlling
factor was the City's custody over Johnson at the time the
medical expenses were incurred and issued an order dismissing
the City's third party complaint against the County.       We
reverse.
     The facts, as stipulated by the parties, are as follows:
     1. On January 4, 1987, Johnson was arrested by
     City Policemen.
     2. The officers immediately determined Johnson's
     life was in jeopardy as a result of his ingestion
     of a quantity of prescription pills.
     3. The officers requested an ambulance which
     arrived at the scene of the arrest and transported
     Johnson to Montana Deaconess Medical Center
     (Deaconess).
     4. Deaconess was advised Johnson was under arrest
     when Johnson arrived.
     5. Johnson incurred reasonable medical charges
     from January 4, 1987, until his release on January
     5, 1987, in the amount of $2,193.13, after two days
     in Deaconess's Intensive Care Unit.
     6. Deaconess made demand for full payment to
     Johnson and Third Party Plaintiff City, and to
     Third Party Defendant County.
     7. The City and County have refused to pay said
     bill.
     8. Johnson admits liability for Deaconess's claim
     but he is indigent and has no present or future
     means to pay the charges.
     9. Johnson was "booked in" in absentia at the
     Police Department on January 4, 1987.
     10.  Johnson was released by Deaconess on January
     5,  1987, and transported to the City Police
     Department.
     11. Johnson was detained at the City Police
     Department until his initial appearance on January
     6, 1987, before the County Justice of the Peace and
     subsequently detained in the County Jail.       The
     County Jail is operated and managed by the County
     Sheriff's Department.
    12. Initial    charges   of   aggravated   assault,
    aggravated   kidnapping and    sexual   intercourse
    without consent, all felony offenses under the
    Montana Criminal Code, were filed in the County
    Justice of the Peace Court (later transferred to
    the District Court) and accepted by the County
    Attorney. No misdemeanor or felony charges of any
    kind were filed with the City Court.
      Generally, persons under official detention have a
constitutional right to adequate medical care, regardless of
their ability to pay.       City of Revere v. Massachusetts
General Hospital (1983), 463 U.S. 239, 103 S.Ct. 2979, 77
L.Ed.2d 605 (due process demands that persons detained by
government    agencies    receive   adequate  medical   care;
responsibility for costs is a matter of state law).
Consistent with the mandate of the United States Supreme
Court, the Montana Legislature has adopted legislation
providing for the care of prisoners. Section 7-32-2222, MCA,
provides :
      Health and safety of prisoners. (1) When a county
      jail or building contiguous to it is on fire and
      there is reason to believe that the prisoners may
     be injured or endangered, the sheriff, jail
      administrator, or private party jailer must remove
     them to a safe and convenient place and there
     confine them as long as it may be necessary to
     avoid the danger.
     (2) When a pestilence or contagious disease breaks
     out in or near a jail and the physician thereof
     certifies that it is likely to endanger the health
     of the prisoners, the district judge may by a
     written appointment designate a safe and convenient
     place in the county or the jail in a contiguous
     county as the place of their confinement.       The
     appointment must be filed in the office of the
     clerk    and   authorize    the    sheriff,    jail
     administrator, or private party jailer to remove
     the prisoners to the designated place or jail and
     there confine them until they can be safely
     returned to the jail from which they were taken.
    (3)   If in the opinion of the sheriff, jail
    administrator, or     private   party  jailer  any
    prisoner, while detained, requires medication,
    medical services, or hospitalization, the expense
    of the same shall be borne by the agency or
    authority at whose instance the prisoner is
    detained when the agency or authority is not the
    county wherein the prisoner is being detained. The
    county attorney shall initiate proceedings to
    collect any charges arising from such medical
    services or hospitalization for the prisoner
    involved if it is determined the prisoner is
    financially able to pay.
     Although the City contends that 5 7-32-2222 (3), MCA,
when viewed in its entirety, indicates that persons charged
with violations of state law occurring within a county are
the financial responsibility of that county, we do not find
the statute to be controlling. By its terms, 5 7-32-2222(3),
MCA, is not triggered until such time as "the sheriff, jail
administrator, or private party jailer" determines that a
detained person requires medical care.      In addition, the
statute, when read as a whole, assumes incarceration in the
county jail at the time the need for medical care arises.
Such is clearly not the situation in the instant case.
     Moreover, § 7-32-2222 (3), MCA, is obviously designed to
fix financial responsibility for medical costs on the agency
for which the prisoner is being detained in the county jail.
This section recognizes that frequently county jails in
Montana are used to house federal prisoners or persons held
for violations of municipal laws.
     When confronted with the issue now before us, the courts
of other jurisdictions have split along two lines of
reasoning.      Under the minority "custody and control"
approach, the financial responsibility for medical costs is
determined on the basis of which agency had custody at the
time the treatment is provided.      See e.g. Sisters of the
Third Order of St. Francis v. Tazewell County (111.App.
1984), 461 N.E.2d      1064.     "[If] physical control is
[subsequently] transferred     [during the course of the
treatment] the responsibility is transferred along with it
and the cost of care [is] prorated."          Cuyahoga County
Hospital v. City of Cleveland (Ohio App. 1984), 472 N.E.2d
757, 759.    Few jurisdictions have followed the lead of the
Ohio and Illinois courts, however.
     The majority "nature of the crime" approach determines
financial responsibility not on the basis of which agency
first takes a person into custody, but rather on the basis of
the crime ultimately charged. See Wesley Medical Center v.
City of Wichita (Kan. 1985), 703 P.2d 818; L. P. Medical
Specialists v. St. Louis County (Minn. App. 1985), 379 N.W.2d
104; Zieger Osteopathic Hospital v. Wayne County (Mich. App.
1984) , 363 N.W.2d 28; Albany General Hospital v. Dalton (Or.
App. 1984), 684 P.2d 34; St. Mary of Nazareth Hospital v.
City of Chicago (Ill. App. 1975), 331 N.E.2d 142; Washington
Township Hospital District of Alameda County v. County of
Alameda (1968), 263 Cal.App.2d 272, 69 Cal.Rptr. 442. After
carefully considering the arguments and authority supporting
both positions, the Supreme Court of Kansas recently held:
     ...   We have concluded that a city is not
     responsible for the payment of medical expenses
     incurred by an indigent person who is arrested by
     city police and subsequently charged with a
     violation of state law and who, before being
     physically transferred to the county jail, is taken
     to a hospital for necessary medical treatment. We
     hold that so long as an offender is arrested for
     violation of a state law and in due course is
     charged with a state crime and delivered to the
     county jail for confinement, the medical and other
     incidental expenses incurred as a consequence of
     and following his arrest, and until his transfer to
     such facility, are chargeable to the county. We
     further hold that a county's liability for charges
     and expenses for safekeeping and maintenance of the
     prisoner, including medical expenses, does not
     depend on which police agency happens to be called
     to the scene of the alleged crime or whether such
     expenses were incurred before or after he is placed
     in a county jail. The controlling factor is that
     the prisoner was arrested and subsequently charged
     with violation of a state law.
Wesley Medical Center, 703 P.2d at 824. We agree.
     A county is the largest subdivision of the state.
Section 7-1-2101, MCA.    Consequently, the county is vested
with the primary responsibility of enforcing the laws of the
state and maintaining facilities in furtherance of that task.
See, S S 7-4-2716, 7-32-2201, MCA.   Sound reasoning dictates
that the performance of the county's task necessarily
includes the assumption of the associated financial burden.
     We, therefore, hold that the county is financially
responsible for medical costs incurred by a detained person
ultimately charged with a violation of state law but who is
unable to pay.     The judgment of the District Court is
reversed and remanded for proceedings consistent with this
Opinion.
                              , A & - e &A-
                                  Justice
W e Concur:           'A




      Chief ' J u s t i c e
