APPEAL from the Circuit Court of Cook County; the Hon. GEORGE
J. SCHALLER, Judge, presiding.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
The City of Chicago (the City) appeals from an order entered in the entitled case in which it was not a party. That order reduced from $708.50 to $200 the amount of a lien claimed by the City for hospital and medical expenses it paid to plaintiff Roger Sullivan (Sullivan). The City contends that the trial court had no authority to make the reduction.
Sullivan, an officer of the Chicago Police Department, was involved in an automobile accident with defendant. At that time he was driving a police squad car accompanied by another officer, Stephen Ergish. As a result of the accident, the City expended $708.50 for treatment of Sullivan's injuries. These monies were paid pursuant to section 22-19 of the Municipal Code of Chicago, which provides:
"The committee on finance of the city council is hereby authorized, directed and empowered to provide for payment for proper medical care and hospital treatment for accidental injuries sustained by any policeman or fireman, while in the performance of his duties, and to that end may recommend to the city council the authorization for payment of any such necessary expenses."
Although not appearing in the record, the City alleges its Committee on Finance notified defendant that it possessed a lien upon the proceeds of any claim, demand or cause of action which Sullivan had against defendant for the amount of medical expenses it paid. Shortly thereafter Sullivan and Ergish filed an action against defendant seeking damages including reimbursement for their medical and hospital expenses. The City also filed an action against defendant for damage to the police car involved in the accident, and an order was entered consolidating the two actions. Sullivan then settled his case for $5,000 and, in its order of April 6, 1973, the court (1) severed the City's action for damage to its police car; and (2) ordered that the City's claimed lien for hospital and medical expenses be reduced to $200 and directed Sullivan to pay the City that amount as full satisfaction for the latter's expenditures. The City's motion to vacate that order was denied on May 18, 1973, and it appeals from that order.
The City argues that section 22-306 of the Illinois Pension Code (Ill. Rev. Stat. 1973, ch. 108 1/2, par. 22-306) *fn1 and its implementing section 22-21 in the Municipal Code of Chicago *fn2 establish a lien in its favor for the recovery of medical and hospital expenses and that neither of the above sections contain any language authorizing a court to reduce the amount due it. The City's contention is predicated on analogizing section 22-306 of the Pension Code with section 11-22 of the Public Aid Code (Ill. Rev. Stat. 1973, ch. 23, par. 11-22) which, in substance, provides that the Department of Public Aid has a charge upon, among other things, causes of actions for injuries to applicant for the total amount of medical assistance provided, and permits trial courts, on "petition filed" by the Department, to exercise some discretion in adjudicating the rights of parties and to apportion any recovery between the Department and a plaintiff.
The Illinois Supreme Court has recently discussed the applicability of this section in the consolidated cases of Davis v. City of Chicago and Matthews v. City of Olney, 59 Ill.2d 439, 322 N.E.2d 29. In each of these cases, the Department of Health intervened, asserting a lien under section 11-22 against any recovery by the plaintiff. The actions were subsequently settled, and in each case the liens were reduced by the trial court. The problem presented arose from the fact that section 11-22 was enacted under the 1870 Constitution and continued in effect under the Constitution in substantially the same form. However, section 23 of article IV of the 1870 Constitution provided that the General Assembly had "no power to release or extinguish in whole or in part" an indebtedness to the State or any municipal corporation therein. Thus, serious questions were raised as to the constitutional validity of section 11-22. The supreme court held that it need not reach the constitutional issue of the statute's validity under the 1870 Constitution in that the appellate court was correct in finding that no justification was presented the trial court in Davis to reduce the claim, and it had therefore abused its discretion in reducing the claim. Further, the settlement order in Matthews which did reduce the charge occurred after the legislature amended section 11-22, which the supreme court construed as a reenactment of the section under the 1970 Constitution.
The City argues here that the settlement order entered on April 6, 1973, came before the reenactment of section 11-22 on November 1, 1973, and therefore a reduction of their claim would be invalid. Their analogy fails in two respects.
First, we fail to see any possible impact a reenactment of section 11-22 of the Public Aid Code (or a failure thereof) could have on the validity of a claim under the Pension Code. Applying the rationale of the Matthews case, we note that the provision of the Pension Code upon which the instant claim is predicated was amended by P.A. 77-754, effective August 12, 1971, clearly after the effective date of the 1970 Constitution and prior to the settlement order of April 6, 1973. Therefore, it should be construed as reenacted under the 1970 Constitution prior to the settlement order.
Secondly, we fail to see the analogy between the cited provision of the Public Aid Code and the Pension Code. While the former is explicit in granting a "charge" or lien upon any claim, the latter, we believe, fails to create such a right.
1 Liens can be created only by agreement or by some fixed rule of law. (25 Ill. L.&Pr. Liens § 3 (1956).) They usually arise by statute, by contract, or by the usages of trade or commerce. (Deitchman v. Korach, 330 Ill. App. 365, 71 N.E.2d 367.) Here, it is only contended that the lien is created by section 22-306 of the Pension Code.
2 The cardinal rule to be followed in construing a statute is that it must be interpreted in such a manner as to ascertain and give effect to the intention of the General Assembly as expressed in the statute. (Lincoln National Life Insurance Co. v. McCarthy, 10 Ill.2d 489, 140 N.E.2d 687; 34 Ill. L.&Pr. Statutes § 113 (1958).) The legislative intent should be sought primarily from the language used in a statute and, if such intent can be ascertained therefrom, it should prevail without resorting to other aids for construction. Weiss Memorial Hospital v. Kroncke, 12 Ill.2d 98, 145 N.E.2d 71.
Section 22-306 of the Pension Code *fn3 provides that a city "may recover any expense of medical care" from the party liable, yet the statute fails to state the precise manner in which recovery is to be made. We believe that the provisions of section 11-22 of the Public Aid Code are distinguishable in that the language of section 11-22 is explicit in establishing a lien. It provides that the Department "shall have a charge upon all claims, demands and causes of ...