(dissenting). I dissent because I interpret sec. 46.10, Stats., as authorizing the collection of the costs of the plaintiffs’ care and maintenance regardless of the validity of their initial commitment. I also disagree with the majority’s conclusion that sec. 46.10 is the exclusive remedy for the state or Milwaukee county to enforce their respective rights of reimbursement. I find it no more inequitable that the plaintiffs who received the benefits of the care bear the burden of the costs than the county which rendered the services as ordered by the court. My reasoning is set out more fully below.
The majority opinion sets forth three major points. First, an action under sec. 46.10, Stats., is the exclusive remedy for the state or Milwaukee county to enforce their respective rights of reimbursement provided to those who are financially able to pay. Second, in using *442the word “commitment,” the legislature did not intend that an action under sec. 46.10 for reimbursement should lie against an individual who had been subjected to an invalid commitment. Third, to extend liability in such a case would be to compound the alleged constitutional error in the initial commitment.
I have already indicated my belief that sec. 46.10, Stats., is not the exclusive remedy available to the state or county. However, regardless of the position one takes on that issue, what is important in this case is what was the legislature’s purpose in adopting the statute. The obvious reason for the legislative action was to make those inmates who were committed to state or county institutions who could afford to pay liable for a portion of the cost of their care and treatment. The legislature was concerned with reducing the amount of money that would have to be borne by the taxpayers. It was not concerned with how the patients were admitted, received or committed to the respective institutions or how they came to receive the services for the introductory section of sec. 46.10(2), recites that it applies to any person, including but not limited to a person admitted or committed . . . receiving care, maintenance, services and supplies provided in any county institution within the state . . ., wherein the state is chargeable with all or any part of the person’s care, maintenance, services and supplies.1 *443The quoted language makes it eminently clear that formal admission or commitment proceedings are not required to establish liability for services and maintenance. It is merely the fact that care and services have been rendered in the providing institution that creates the liability, for it is unfair that the taxpayers of Milwaukee county should be called upon to pay for medical benefit given to one who is able to pay for the service and who personally or through his immediate relative, in all probability, initiated the commitment proceeding. The purpose of the statute is clear and unambiguous to prevent unjust enrichment at the taxpayers’ expense. Therefore, it makes no difference whether a common law action for unjust enrichment may be brought, as the legislature has created a statutory remedy.
In addition to the preceding discussion as to the nonex-clusivity of sec. 46.10, Stats., it can be noted that two interrelated but distinct statutory provisions indicate that the provisions of sec. 46.10 are not exclusive. These *444statutory provisions are sec. 51.42(1),2 and sec. 51.437 (4).3 Sec. 51.42(1) allows for the establishment of *445county mental health facilities such as the Milwaukee county facilities to which the petitioners in this case were committed. Sub. (1) of 51.42 sets out the county’s responsibility to render such services and uses the following language in referring to the county’s liability to collect for the mental health services it renders:
“Nothing in this paragraph prevents recovery of liability under s. 46.10 or any other statute creating liability upon the individual receiving a service or any other designated responsible party.”
The exact same language can be found in sec. 51.437 (4), Stats., which sets out the county’s responsibility to provide services to disabled persons.4
The language of each of these statutory provisions clearly demonstrates that the legislature did not design sec. 46.10, Stats., to provide the exclusive means for the county to recover for the services it renders to persons financially able to pay.
The majority interprets the statutory language as authorizing collection from a person who was committed to an institution only if the commitment was procedurally valid. Assuming the plaintiffs were committed by constitutionally deficient procedures, the majority holds that they were not “committed” as that term is used in the statute and, therefore, they are not liable for the costs of care rendered them.
This construction ignores the use of the phrase “including but not limited to” in the statute. That language clearly indicates that the provision was intended to impose liability on all persons who receive care, maintenance, services, and supplies at an institution. Even accepting the majority’s finding that the plaintiffs were *446not “committed,” the express language of the statute imposes liability on them as they received the care and services described. The majority reads into the statute language which is not contained therein when they conclude that the statute only authorizes collection from persons committed through constitutionally valid procedures. This may explain why the majority opinion never sets out the entire text of the statute.5 The liability created by sec. 46.10, Stats., is not limited to persons statutorily admitted or committed. I cannot join the majority opinion which impliedly holds otherwise.
The overemphasis placed on the word “commitment” by the majority, the Wisconsin Civil Liberties Union and Legal Action of Wisconsin, in representing the plaintiff and his family, is unwarranted for another reason. The state is not chargeable for any part of the care and treatment provided to the plaintiff so the introductory clause of sec. 46.10, Stats., containing the examples for admission and commitment, does not create any liability upon the plaintiff. His posture in the liability scheme falls under the next clause that extends liability to “any person receiving care and services under boards or facilities established under secs. 47.195, 51.42 and 51.437. *447The Milwaukee county institutions are administered by a board established under sec. 46.21. Sec. 51.42 incorporates sec. 46.21 in its provisions. Therefore, the plaintiff is subject to statutory liability if he received care and services in a facility operated under a sec. 51.42 board. The question remains whether the care and services were necessary, for if they were not, it would not only be inequitable, but a denial of due process, to exact a payment from the plaintiff for care and treatment he did not request or need.
In the majority of cases, the necessity for care and treatment is determined by a formal mental commitment proceeding or a voluntary admission to an institution. On the other hand, if a person has been involuntarily committed because of an invalid commitment hearing, that determination is not binding upon him. This means that he may raise the invalidity of the commitment proceedings in any action to collect payment under sec. 46.10, Stats., or other applicable statutory authority for care and services provided, pursuant to such illegal commitment. It is then incumbent on the county to establish that the treatment and service provided were necessary, without relying on the commitment proceeding itself. If the county can fulfill this requirement and establish necessity, it may proceed to recover under sec. 46.10, or other applicable statutes. If it fails to establish the same, judgment for the plaintiff shall be rendered.
In fn. 5 of its opinion, the majority finds cogent the argument that a person who is not mentally ill derives no benefit from psychotropic medication. I agree that one who is not mentally in need of hospitalization and treatment should not have to pay. However, it has not been established that the plaintiff was not mentally ill at the time he was admitted to the Milwaukee county institution. Indeed, there is no indication in the record that any of the members of plaintiff’s class were not in *448need of treatment at the time they were admitted. The real question is whether the county is precluded from showing that the plaintiff was mentally ill, notwithstanding that the plaintiff was represented at his commitment hearing in a way that offended his constitutional right to counsel, in the opinion of one judge. As I have noted above, the effect of the majority’s opinion is to bar the county from proving that the plaintiffs were mentally ill and in need of the services they received.
I would not comment on the facts in State ex rel. Memmel v. Mundy6 or on the mental commitment proceedings referred to except for the fact that the majority approves of the trial judge’s comments:
“We note that the merit of the decision in State ex rel. Memmel v. Mundy was not appealed and that the parties to this action do not dispute the fact that plaintiffs’ commitments were invalid. We, therefore, have no occasion to address the propriety of plaintiffs’ commitments. We do, however, note that the trial judge, with some justification, used vigorous language in his evaluation of the issue of due process.” Majority Op. at 432-433.
when they have not had the benefit of reading the entire record in that case and the gratuitous comment made in footnote 5 that in no way relates to the. facts in the skimpy record before us.
The majority’s interpretation of sec. 46.10, Stats., also ignores the use of the word “admitted” in the statute. From the point of view of the administrator of the county institutions, the plaintiffs in this case were “admitted” to the institution upon delivery of the commitment. Thus, from the point of view of the county and the administrator, the statute authorizes the collection of the cost of care and services from the plaintiffs as persons “admitted” to the institution.
*449The result of the majority’s decision is that the county and consequently the taxpayers are saddled with the cost of the care and services rendered to the plaintiffs. This is done in spite of the fact that the county was required to admit the plaintiffs to the institutions under the applicable provisions of the statutes. (See: chs. 46 and 51, Stats., generally.) Under established case law, the county had ho standing to question the civil commitment policies and procedures involved. Dane County v. Dept. of Health & Social Services, 79 Wis. 2d 323, 330, 255 N.W. 2d 539 (1977). Nor could the county’s agents be faulted for failing to inquire into the validity of the orders of commitment where they were “fair on their face.” Kalb v. Luce, 234 Wis. 509, 516, 291 N.W. 841 (1940); Langen v. Borkowski, 188 Wis. 277, 299-300, 206 N.W. 181 (1925); Kenney v. Fox, 232 F.2d 288, 290 (6th Cir. 1955), cert. den. sub nom Kenney v. Killian, 352 U.S. 855 (1956); Arensman v. Brown, 430 F.2d 190, 194-95 (7th Cir. 1970). Thus, the county is being made to bear the cost of services it was both required to render and could not challenge.
Practically speaking, it would be impossible for the administrator of the county institutions to look behind each and every commitment of the court. Holding the county responsible for accepting patients committed by constitutionally invalid procedures in effect punishes them for innocently providing services pursuant to a court order which they had neither the authority nor time to question.
The plaintiffs point to the allegedly improper proceedings of the Milwaukee county courts which committed the plaintiffs in support of their arguments that the county should be prevented from enforcing the statutory liability. The plaintiffs seek to attribute the actions of the courts to the county. Such an argument is contrary to the principle of separation of powers which is so funda*450mental to our form of democracy. The judicial branch of our government is independent of and co-equal with the other branches of government. Wis. Constitution, art. VII, sec. 2; In re Cannon, 206 Wis. 374, 240 N.W. 441 (1932). Imposing responsibility on the county for acts of the courts disregards established principles of judicial immunity. Holytz v. City of Milwaukee, 17 Wis. 2d 26, 40, 115 N.W.2d 618 (1962). Indeed, if a judge were not regarded as independent of the county in which he presides, he could not sit in any case in which the county was a party. Likewise, this court would not be able to handle cases in which the state was a party if the judicial branch were not independent.
The remedies of the plaintiffs, if any, are against the judges who presided over their commitment proceedings through a sec. 1983 action, not against the county which was an innocent party to the commitment. It is unlikely that the plaintiffs would succeed in a sec. 1983 action, however, in that principles of judicial immunity protect judges or court commissioners, acting under the authority of the respective probate judges, from liability under 42 U.S.C. sec 1983, when they act within their judicial function. Abdella v. Catlin, 79 Wis. 2d 270, 298, 255 N.W.2d 516 (1977). In the case before us, there has been no allegation that the committing judges or court commissioners, acting under the authority of the respective probate judges, acted either in bad faith or outside their jurisdiction.
Holding the plaintiffs liable for the cost of the care and services does not offend principles of equity, especially when the following factors are considered. Foremost among these is the fact that the plaintiffs did indeed receive the cafe and services for which recovery is sought. There is no evidence in this record which in any way demonstrates that the plaintiffs did not need the care which was provided. Neither is there any evidence demonstrating that at the time committed any of the plain*451tiffs were not a danger to themselves or others and, therefore, should not have been committed. Lastly, there is no evidence indicating the number of plaintiffs released who were not subsequently recommitted by constitutionally sufficient procedures. In the absence of these showings, it does not seem “absurd” to interpret sec. 46.10, Stats., as requiring the plaintiffs to pay for the services rendered. It does not strike me as inequitable to require the plaintiffs to reimburse the county if they are able ¡to pay.
It should be pointed out that the majority of the commitment proceedings involved in this case were in all probability based on applications filed by relatives of the plaintiffs. Under sec. 46.10, Stats., the relatives of the committed person are liable for the cost of care and services if the patient is unable to pay. Thus, the majority’s decision to relieve the plaintiffs from liability under sec. 46.10 potentially relieves the plaintiffs’ relatives of an obligation to pay for treatment which they initially requested. This result is patently unfair to the county and its taxpayers.
I liken this ease to the situation which arises in a hospital emergency room when an unconscious victim of a car accident is brought in for treatment. Although the patient does not request treatment, it is given to him. Subsequently, the hospital can, and does, collect the cost of the services rendered from the injured person. This is done regardless of whether another party is responsible for the injuries.
In our case, the county institutions acted like the hospital. They administered the care which was court ordered and necessary. They should be entitled to recovery for this care although it was rendered because of another’s wrongful acts. Just as much as a party injured in a car accident cannot avoid paying a hospital for the care they received because another was responsible for the accident, the plaintiffs here should not be *452able to avoid paying for the care they received because other persons allowed them to be committed through unconstitutional proceedings. The plaintiffs should be required to pay the costs and then seek to recover from the persons responsible for the improper commitment. They may be entitled to a recovery from their representative at the commitment proceedings for breach of a fiduciary duty or from the committing authorities for violation of their constitutional rights protected under 42 U.S.C. sec. 1983. Regardless of the status of the plaintiffs’ rights against other parties, however, the county should not be required to bear the cost of the services the plaintiffs received.
The basic issue involved in this case is whether the county, and, therefore, indirectly the taxpayers, is entitled to reimbursement for the services rendered the plaintiffs. The result of the majority’s determination of this issue is that the taxpayers are being denied their due process rights. The question we are faced with is the constitutionality of the commitments and whether the services rendered by the county were necessary and received by the patients. Until these issues are fully litigated, the taxpayers of Milwaukee county are being denied their due process rights to a judicial proceeding in which the necessity of the treatments rendered to the plaintiffs and their ability to pay can be fully litigated. The majority, in effect, bars the taxpayers from a proceeding in which those issues can be litigated and, hence, denies them due process.
If the court would have committed the plaintiffs to a private treatment center, would that private treatment center be entitled to payment for the services rendered regardless of the validity of the initial commitment or would they also have to suffer the loss for the treatment and services rendered in a commitment, the validity of which they have no knowledge of nor standing to challenge. If that be the case, they then would be wise to *453search to find some legal ruse, as the plaintiffs did here, to attempt to challenge each and every commitment made to them, and the mentally ill patient be left in limbo in the interim, lest they (the provider) be left without a remedy and have their due process rights denied, the same as the citizens of Milwaukee county, in trying to collect for a legal debt authorized in law for treatment and services rendered in good faith when need and danger have been properly demonstrated.
Our resolution of the issues presented in this case has been hampered by the fact that the initial action in which the plaintiffs’ commitments were declared unconstitutional by one judge is not before the court.7 Based upon the limited information concerning that action which can be found' in the files of this case, I am unable to understand why the county initially stipulated to the unconstitutionality of the procedures by which the plaintiffs were committed. I am also unable to understand why the county failed to appeal the order which implemented that stipulation.8 The questions concerning the validity of the commitments and the appropriate remedies, if any, have never been decided in these United States on a similar factual situation.
Whether a thirteen-minute proceeding is sufficient to determine that a person brought in while hallucinating and under restraints is in need of treatment or whether an extensive proceeding is required to determine that institutional care is necessary when application for treatment is made by one or more qualified physicians (sec. 51.04 and sec. 51.065, Stats. 1973) are questions which should have been fully litigatéd. The failure of the county to do so may have been a disservice to the residents and taxpayers of the county.
*454I believe it is most imperative that we fully protect an individual’s broad spectrum of constitutional rights before authorizing a commitment to a mental hospital, yet I think it borders on the extreme for a court to tacitly mandate that extensive proceedings be held for each and every commitment, particularly where the individual who is the subject of the proceeding is so out of contact with reality, mentally deranged, confused, irrational, often combative and in restraints that frequently it may be unnecessary and unfair that he or she be required to sit through a full trial which neither he nor she comprehends. Not to mention that the requirement of extensive psychiatric testimony rather than the use of affidavits allowed by the statute in each and every commitment proceeding placed a significant burden on the taxpayers and can be a waste of the psychiatrist’s time, lest we forget the acute shortage of nursing personnel in hospitals, the time of social workers and other parties involved. Large amounts of costly and valuable court time may be absorbed unnecessarily by such procedures. Extensive proceedings may not be constitutionally necessary where a person’s mental condition and demeanor clearly demonstrate that he is deranged and/or severely confused and observation, affidavits or testimony support his conclusion as well as providing adequate support for a finding that the person is a danger to himself or others.
I believe that the majority engages in judicial activism when it reads an exclusion of persons committed by constitutionally insufficient procedures into the liability for cost of services provided for by sec. 46.10, Stats., and other statutes.
I would hold that the stipulated invalidity of the plaintiff’s commitment did not furnish a complete defense to an action by the county, pursuant to sec. 46.10, Stats. The county should not be deprived of its day in court. Although it cannot rely on the commitment to establish the need for the care and treatment provided, it can rely *455on other evidence including, but not limited to, its medical records, psychiatric testimony, relatives’ testimony, affidavits, etc., while the plaintiff was receiving benefits through hospitalization. I would affirm the court of appeals.
Sec. 46.10(2), Stats., reads as follows:
“Cost of care and maintenance, liability; collection and deportation counsel; collections; court actions; recovery. . . .
“(2) Except as provided in sub. (2m), any person, including but not limited to a person admitted or committed under ss. 51.10, 51.13, 51.15, 51.20, 51.35(3), 51.37(5), 51.45(10), (11), (12) and (13), 55.05, 55.06, 971.14(2) and (5), 971.17(1), 975.01, 1977 stats., 975.02, 1977 stats., 975.06 and 975.17, 1977 stats., receiving care, maintenance, services and supplies provided by any institution in this state including university of Wisconsin hospital and clinics, in which the state is chargeable with all or part of the person’s *443care, maintenance, services and supplies, and any person receiving care and services under boards or facilities established under ss. 49.175, 51.42 and 51.437, and the person’s property and estate, including the homestead, and the spouse of the person, and the spouse’s property and estate, including the homestead, and, in the case of a minor child, the parents of the person, and their property and estates, including their homestead, shall be liable for the cost of the care, maintenance, services and supplies in accordance with the fee schedule established by the department under s. 46.03(18). The department may bring action for the enforcement of the liability. If a spouse, widow or minor, or an incapacitated person may be lawfully dependent upon the property for their support, the court shall release all or such part of the property and estate from the charges that may be necessary to provide for those persons. The department shall make every reasonable effort to notify the relatives liable as soon as possible after the beginning of the maintenance, but the notice or the receipt thereof is not a condition of liability of the relative.”
Sec. 51.42(1) (b) reads as follows:
“Community mental health, mental retardation, alcoholism and drug abuse services. (1) Program.
“(b) Responsibility of county government. The county boards of supervisors have the primary responsibility for the well-being, treatment and care of the mentally ill, developmentally disabled, alcoholic and other drug dependent citizens residing within their respective counties and for ensuring that those individuals in need of such emergency services found within their respective counties receive immediate emergency services. County liability for care and services purchased through or provided by a board established under this section shall be based upon the client’s county of residence except for emergency services for which liability shall be placed with the county in which the individual is found. For the purpose of establishing county liability, ‘emergency’ services includes those services provided under the authority of s. 51.15, 51.45(11) (b) and (12), 55.05(4), 55.06(11) (a) or 51.45 (11) (a) for not more than 72 hours. Nothing in this paragraph prevents recovery of liability under s. 46.10 or any other statute creating liability upon the individual receiving a service or any other designated responsible party.”
Sec. 51.437(4) reads as follows:
“Developmental disabilities services. . . .
“(4) Responsibility of county government. The county boards of supervisors have the primary governmental responsibility for the well-being of those developmentally disabled' citizens residing within their respective counties and the families of the mentally retarded insofar as the usual resultant family stresses bear on the well-being of the developmentally disabled citizen. County liability for care and services purchased through or provided by a board established under this section shall be based upon the client’s county of residence except for emergency services for which liability shall be placed with the county in which the individual is found. For the purpose of establishing county liability, ‘emergency’ services means those services provided under the authority of s. 51.15, 55.05(4) or 55.06(11) (a). Nothing in this paragraph prevents recovery of liability under s. 46.10 or any other statute creating liability upon the individual receiving a service or any other designated responsible party. Adjacent counties, lacking the financial resources and professional personnel needed to provide *445or secure such services on a single-county basis, may and shall be encouraged to combine their energies and financial resources to provide these joint services and facilities with the approval of the department. This responsibility includes: . . .”
See fn. 3.
Since the preparation of this dissent, the majority has altered its opinion to include all the relevant language from sec. 46.10, Stats. (See majority opinion fn. 1.)
The majority in its footnote 1, questions whether there exists any group of persons in an institution other than those admitted or committed. We believe our point in this discussion as referred to in this dissent is very clear, that the use of the phrase “including but not limited to persons admitted or committed” indicates a legislative intent to allow recovery under sec. 46.10, Stats., no matter how a person comes to receive services at the institution. Responding more directly to the question posed in the majority’s footnote, however, we point out that, in addition to being admitted or committed to the institution, persons can be transferred within the same hospital or transferred from other hospitals on the compound for temporary detention without a formal commitment or admission order.
State ex rel. Memmel v. Mundy, 75 Wis. 2d 276, 249 N.W.2d 573 (1977).
See: Citation at fn. 6.
The only appeal arising from that action challenged an order of the court which concerned the provision of representation in future commitments. State ex rel. Memmel v. Mundy, 75 Wis. 2d 276, 249 N.W.2d 573 (1977).