(concurring). I believe that unless the commitment is made under the Mental Health Act, ch. 51, Stats., and not under sec. 957.11 (3), Stats. 1967, there is no liability on the part of the estate of the insane person under sec. 46.10 (2). A commitment under sec. 957.11, whether for observation or after observation for treatment, is primarily to serve the state in its prosecution of crime. Liability under sec. 46.10 (2) is predicated on being a patient in any charitable or curative institution.
The difference in the majority opinion and the dissent lies in the distinction between the rationale and the holdings of our prior cases. What is said in a decision is sometimes in the nature of dicta and sometimes in the form of necessary reasons; what the court decides on particular facts may be another matter. Three cases are in dispute: Guardianship of Sprain (1935), 219 Wis. 591, 263 N. W. 648; Guardianship of Radoll (1936), 222 Wis. 539, 269 N. W. 305; and Treglown v. Department of Health & Social Services (1968), 38 Wis. 2d 317, 156 N. W. 2d 363. I would add another. In re Guardianship of Gardner (1936), 220 Wis. 490, 264 N. W. 647.
Sprain seems to be the root of the evil. In that case, Sprain was charged with murder, sent to Central State Hospital for observation as to his sanity; after five months of observation, the court found him insane and *200postponed his trial indefinitely. He was committed to Central State Hospital and remained there about five years. The state board of control filed a claim in his estate under the predecessor statute to sec. 46.10 (2) for his maintenance for both the five-month observation period and the five-year confinement period. It is important in evaluating this case to note that the guardian objected only to the charge for the five-months’ observation period. The court held the estate could not be charged for expenses during the five-month period Sprain was held for observation. The court thus routinely approved the charges for the five-year period after Sprain was found insane and recommitted to Central State Hospital. Since there was no issue as to the five-year period, it cannot be fairly said the court decided the issue simply because it allowed the uncontested part of the claim. The reason given for disallowing the charge for the five-months’ observation period was because Sprain was held under a criminal warrant and the purpose of such confinement was incidental to his prosecution for a crime.
The rationale of this case is to the effect that one held under a criminal warrant and whose confinement is incidental to the prosecution of a crime is not liable for his maintenance while so held. Thus we have a holding based on a contested issue of no liability under sec. 46.10 (2), Stats., where a person is held for observation under the section equivalent to sec. 957.11 (3). The court did not decide there was liability after Sprain was found insane because the guardian never raised the question.
In the following year, this court decided Gardner. While serving a sentence in prison for rape, Gardner was adjudged insane and transferred to Central State Hospital. This court held his estate was not liable for expenses of his incarceration and gave as its reasons that his hospital confinement was referable to his in-*201earceration for a crime and his confinement coincided with his prison sentence. This holding does not control the facts of the instant case but the court’s reasoning is clear that there is no liability during incarceration under a sentence because the insanity is connected with or referable to incarceration for a crime.
Later the same year this court decided Radoll, After a thirty-day period of observation in Central State Hospital, the trial court committed Radoll, who was charged with assault while armed with intent to murder, to Central State Hospital and stayed all criminal proceedings “ ‘until said defendant shall have recovered from such mental disorder.’ ” This court treated the order as complying with sec. 357.13, Stats., predecessor of sec. 957.11 (3) and in effect finding Radoll was presently insane and was committed for hospitalization and treatment. The court said the sole contention the guardian had any standing to make against the claim of the state board of control for reimbursement for Radoll’s care and maintenance was whether the commitment was for observation under sec. 357.13. The court found the commitment was not for observation, did not discuss the holdings in Sprain and Gardner, and stated that if the commitment was pursuant to sec. 357.13, the guardian was liable under sec. 46.10. This case is not persuasive because neither Sprain nor Gardner, upon which the court apparently relied without discussion, is a justification for the statement of liability. The assumption in this opinion is that the commitment under sec. 357.13 after a finding of present insanity is somehow the equivalent of a finding of insanity in a civil suit under ch. 51. In this case no mention is made that the confinement as an insane under sec. 357.13 although not for observation, was referable and bottomed on the criminal process. Such a commitment may be partially for a remedial purpose, but the alleged insane person *202is incarcerated not so much for his own good but for the public good and so that he can stand trial and answer for his crime. Under this view of incarceration, men have been kept in institutions for years; see State ex rel. Haskins v. Dodge County Court (1974), 62 Wis. 2d 250, 214 N. W. 2d 575.
The idea that sec. 957.11, Stats., can be used as a substitute for a civil commitment is no longer valid. In State ex rel. Matalik v. Schubert (1973), 57 Wis. 2d 315, 204 N. W. 2d 13, and Jackson v. Indiana (1972), 406 U. S. 715, 92 Sup. Ct. 1845, 32 L. Ed. 2d 435, it was held the period for which a defendant may be held in the course of the criminal process because he is insane and unable to stand trial is limited. In the recent case of State ex rel. Haskins v. Dodge County Court, this court on constitutional grounds limited the length of time to eighteen months that a person could be incarcerated under sec. 957.11 for the purpose of having him stand trial. We stated from Jackson that if it appeared at an earlier time that a defendant is not making progress toward regaining his competency to stand trial, he must be discharged from the criminal commitment. In my view, sec. 957.11 (3) serves a criminal purpose and is part of the criminal law, whether the commitment is made for observation or so that the accused can be treated and tried for his alleged crime.
This view is not contrary to the rationale in the last case decided in this area. In Treglown, we discussed the foregoing cases, but Treglown does not hold what the dissent states it does.1 The lower court held the parents *203of a minor liable for his maintenance during his confinement at the Central State Hospital on a commitment made pursuant to sec. 957.11 (3), after being adjudged not guilty of first-degree murder by reason of insanity at the time of the offense. We reversed; consequently, holding there was no liability.2 Significantly, in Treg*204lown we pointed out the differences between commitment under sec. 51.05, Stats., and sec. 957.11 (3), particularly in the provisions governing’ release in relation to whether the incarceration was for treatment alone or partially for treatment to protect the public. This court reasoned “the non-treatment factors involved in his commitment and the public safety requirements for his release militates strongly against requiring his father and mother to pay for his maintenance costs while confined.” Likewise, an insane person treated so the state can prosecute him for a crime has strong public purpose factors. Consequently, we have only Guardianship of Radoll holding a commitment under sec. 957.11 (3) after observation and before trial for the purpose of holding and treating such person for trial is a basis for liability.
I would reverse the holding in Radoll because it seems to be influenced by Sprain and it is out of step with today’s concept of the purpose and the limited scope of sec. 957.11 (3), Stats. To my way of thinking, sec. 46.10 (2) was not intended to cover cases under sec. 957.11 (3) or to apply to commitments under sec. 957.11 (3) to Central State Hospital as a charitable or curative institution. Central State Hospital is basically a state hospital for the criminally insane. Sec. 46.10 (2) should not apply to commitments in aid of the criminal process.
I am authorized to state Mr. Justice Beilfuss joins in this concurring opinion.
The dissent misstates the holding as follows:
“However, as to the type of commitment involved in the case before us, this court in Treglown expressly held that the patient or his estate was liable for maintenance costs at Central State Hospital. The exact and express holding was: ‘(2) estate liability for maintenance at Central State Hospital when, on a finding of present insanity, proceedings are stayed and the patient has been committed until able to stand trial.’ ”
*203But on page 323, Treglown is talking about what prior cases held, not what it held. The complete paragraph from which the minority takes its quote as the holding is as follows:
“Viewed together, these three cases hold (1) no estate liability for maintenance at Central State Hospital when the patient was committed for observation to determine his sanity to stand trial; (2) estate liability for maintenance at Central State Hospital when, on a finding of present insanity, proceedings are stayed and the patient has been committed until able to stand trial; (3) no estate liability for maintenance at Central State Hospital when the patient was committed after having been sentenced to prison and while serving his term.”
The quote the minority used as a holding is obviously a reference to Guardianship of Radoll, supra.
The minority in several places misstates the holding of Treglown: On page 206, “As authority for thus holding an estate liable under circumstances identical with those presented by this appeal, this court in Treglown cited an earlier case, Guardianship of Radoll, . . .” on page 207, “In holding the patient or his estate liable in the situation now before us, the Treglown decision emphasizes that, in such situation, recovery of the patient is the ‘sole test for return to court to face further proceedings.’ ”
The following quotation from Treglown makes it clear the minority opinion is not correct (at p. 327) :
“If John Treglown had been found sane and convicted, he would have been sentenced beyond doubt to a state penal institution to be confined for the protection of the public and for his rehabilitation, if possible. In that event, the respondent would and could have made no claim upon his father and mother for maintenance costs while he was confined. He was found not guilty by reason of insanity and was committed to the Central State Hospital for the protection of the public and for his rehabilitation and treatment, if possible. The nontreatment factors involved in his commitment and the public safety requirements for his release militate strongly against requiring his father and mother to pay for his maintenance costs while confined.”
*204Again on page 328:
“In finding that the father and mother are not liable under sec. 46.10 (2), Stats., for the maintenance costs of their minor son while confined in Central State Hospital pursuant to sec. 967.11 (3), we are helped by the rule of law that a statute in derogation of the common law is to be strictly construed. Except for sec. 46.10, there is no basis in common law or statutory law for a claim against parents for maintenance costs of their son while confined in a state hospital for the criminally insane. Construing the statute strictly, as applied to the parents, we find that it does not sustain the petition brought by the State Department of Health & Social Services.”