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 111 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, § 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, § 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, § 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.

Order affirmed.