The Appellate Division of the District Courts, Western Division, finding no error, dismissed a report of a judge of the District Court of Hampshire, and the order of dismissal is here on appeal by the appellant Moore. We agree with the views expressed in the opinion of the presiding judge of the Appellate Division (1) that on the facts the judge of the District Court was not empowered under G. L. c. 123, Treatment and Commitment of Mentally Ill and Mentally Retarded Persons, to order "family care" of the appellant (the judge had refused the petition of the appellee hospital for civil commitment of the appellant and was asked by the appellant to order family care); and (2) that the distinction in G. L. c. 123, Section 33, as to the allowance of expenses, here the fees and disbursements of appointed counsel, between cases where civil commitment is ordered (expenses shall be allowed) and cases where civil commitment is not ordered (expenses allowed in discretion), is not so arbitrary on its face as to be constitutionally invalid. The appellant seeks to raise a question regarding the constitutionality of provisions for so called "conditional voluntary admissions" to mental health facilities (see G. L. c. 123, Section 11), but even if the question were available on this appeal although not mentioned in the report, we would decline to answer it on the ground of mootness. A contention that G. L. c. 231, Section 111, is unconstitutionally discriminatory on its face, in that it authorizes the reporting of interlocutory matters to this court by the judges of certain enumerated courts, but not judges of the District Courts, we find entirely without merit.
The defendant's sole assignment of error raises an issue which was considered and resolved against the defendant's contention in Commonwealth v. Cassesso, 368 Mass. 124 (1975). We see no reason to change our position. See Commonwealth v. Stone, 366 Mass. 506 (1974), for a previous opinion involving this defendant.
The defendant town took by eminent domain a parcel of the plaintiff's land, and in 1972 the plaintiff sued for damages under G. L. c. 79, Section 14. In July, 1973, the town's motion to claim jury trial was allowed. Statute 1973, c. 983, Section 1, amended G. L. c. 79, Section 22, to provide for trial by a
judge of the Superior Court sitting without a jury and for subsequent trial de novo before another judge sitting with a jury. Before trial in April, 1974, the judge expressed the opinion that the amendment would be applicable, and both parties signed and filed waivers of jury trial. After trial the town requested trial by jury de novo, pursuant to G. L. c. 79, Section 22. After hearing, on motion, the request was ordered struck, and the town's bill of exceptions was ordered treated as a notice of appeal under Mass. R. Civ. P. 1A, 365 Mass. 845 , effective July 1, 1974. The case was transferred to this court on our own motion under G. L. c. 211A, Section 10 (A). There was no error. The judge's order imports a finding that the town's waiver of jury trial was not limited to trial in the first instance. The order striking the town's request is affirmed, and judgment is to be entered on the judge's finding.