(dissenting).
I dissent, believing that under the facts here presented it is unnecessary and therefore improper to declare the statute in question, Sec. 64 — 7-36 subd. G, U.C.A. 1953, unconstitutional. Whenever it is reasonably possible to do so, a statute should be so interpreted and applied in a given set of facts as to avoid bringing it into conflict with constitutional provisions. Salt Lake City v. Perkins, 9 Utah 2d 317, 343 P.2d 1106.
Viewed in the light of the proposition just stated, it is my opinion that the stat*16ute in .question should be regarded as permissive as to the appointment of counsel. If it had been intended that a patient whose sanity was being examined into should have a lawyer in all cases, the legislature could have plainly so stated: that in all such cases the patient must have a lawyer to represent his interests. But it did not do so. Instead, it used the language:
An opportunity to be represented by counsel shall be afforded to every proposed patient, and if neither he nor others provide counsel the court shall appoint counsel. (Emphasis added.)
When we consider the purpose and the practical effect of the statute, the emphasized language can be quite reasonably understood to mean that the patient shall be afforded the “opportunity” of having counsel ; but that it does not mean that he shall always be compelled to accept that opportunity. Every judge and every person acquainted with the situation knows that it is only in a very small percentage of the hundreds of insanity hearings held in our courts every year would it make any sense at all to have an attorney representing the interests of the patient.
The only justifiable objective of such a statute is this: that when it appears either necessary or desirable that the patient have counsel, he shall have one, either by private means, or with the assistance of the court. This, to my mind, is the reasonable and practical interpretation of the language of the statute and it has these advantages: it would be in harmony with the language of the statute as I have just discussed; it would eliminate cumbersomeness of procedure and inordinate expense mounting in hundreds of cases where there is no necessity nor justification whatsoever for such expense; it would be in substantial conformity with the actual procedure that has operated quite satisfactorily in our state practically ever since statehood.
The foregoing is in my mind the important aspect of this case. Whether the judgment of $75 in the instant case is affirmed or reversed is of no great importance insofar as the principle of law is concerned. However, it is my belief that the judgment should be reversed because there has been no proper proceeding against the County by which a judgment, large or small, could properly be assessed against it. See Washington County v. Day, 22 Utah 2d 6, 447 P.2d 189.