author: JUSTICE SIMON JUSTICE UNDERWOOD,

text:
    (No. 55739.
    VIVIAN E. KOZAK, Appellee, v. RETIREMENT BOARD OF THE FIREMEN’S ANNUITY AND BENEFIT FUND OF CHICAGO, Appellant.

      Opinion filed February 18, 1983.
    Rehearing denied April 8, 1983.

      Stanley Garber, Corporation Counsel, of Chicago (Gerald W. Shea, Robert R. Retke, Mary K. Rochford, and Jerome A. Siegan, of counsel), for appellant.
    Kevin M. Forde, Ltd., of Chicago (Kevin M. Forde, Marshall E. LeSueur, and Katrina Veerhusen, of counsel), for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

We are called upon here to construe the words “current annual salary” as they are used in section 6 — 140 of the Illinois Pension Code (Ill. Rev. Stat. 1979, ch. lOSVa, par. 6 — 140). The relevant portion of the statute for the purposes of this appeal was amended effective January 1,1972, and as amended at that time, the statute reads:

“The annuity for the widow of a fireman whose death results from the performance of an act or acts of duty shall be an amount equal to 50% of the current annual salary attached to the classified position to which the fireman was certified at the time of his death and 75% thereof after December 31, 1972, and it shall be payable to the widow until the fireman, had he lived, would have attained the age prescribed for compulsory retirement.
Thereafter the widow shall receive annuity of an amount equal to 40% of the current annual salary attached to the classified position to which the fireman was certified at the time of his death.” (Emphasis added.) Ill. Rev. Stat. 1979, ch. IO8V2, par. 6 — 140.

The amendment also provided that it was applicable to widows already receiving benefits as well as those qualifying for pensions after its effective date.

Plaintiff, the widow of a Chicago fire department battalion chief killed in the line of duty in 1970, seeks administrative review for herself and similarly situated annuitants of an order of the Retirement Board of the Firemen’s Annuity and Benefit Fund of Chicago (a city administrative agency). The challenged order, which became effective on January 1, 1974, froze the annuities of widows then receiving benefits at a figure based on fire department salaries in 1973 and directed that future widows were to receive an annuity fixed by the annual salary of their firefighter husbands at the time of their death.

From the time of her husband’s death in 1970 until 1972, the plaintiff received an annuity based on the amount of his salary at the time of his death. In 1972 and 1973 the retirement board construed and applied the amendment quoted above to require that the annuity be computed on the annual salary of currently employed firefighters, and as their salaries were changed from time to time the amount of the annuity was to be adjusted to reflect those changes. Battalion chiefs received raises in both of those years, and the plaintiff’s annuity was increased because of those raises.

The plaintiff filed a complaint with the retirement board disputing the change brought about by the interpretation of the statute which froze the amount of the existing annuities effective January 1, 1974, at the levels then prevailing regardless of future salary increases firefighters might receive. The retirement board’s decision was adverse to the plaintiff, and on administrative review, the circuit court of Cook County dismissed the complaint on the ground that a widow’s annuity under the amended statute is a vested annuity, fixed in amount at the death of the firefighter. The appellate court reversed, holding that the statute required the pension to be computed according to the current annual salary and not the salary at the time of decedent’s death. (99 Ill. App. 3d 1015.) The issue is whether the introduction of the words “current annual salary” by the 1972 amendment made the amount of the annuity flexible, changing to reflect salary changes in the fire department, as the appellate court concluded, or whether those words still leave the amount fixed based on whatever the firefighter’s salary was when he died, as the circuit court decided. We believe that the appellate court applied the proper interpretation of the statute.

The words used in a statute are to be given their ordinary and popularly understood meaning. (Illinois Power Co. v. Mahin (1978), 72 Ill. 2d 189.) The appellate court relied in part on the definition in the Random House Dictionary of the English Language Unabridged Edition (1966) to determine the meaning of “current.” There, the word is defined as meaning “passing in time or belonging to the time actually passing; new, present, most recent.” Webster’s Third New International Dictionary 557 (1971) defines its meaning as “occurring in or belonging to the present time.” We accept and apply these definitions, which are supported by the following cases: Warren Co. v. Commissioner (5th Cir. 1943), 135 F.2d 679; Graham v. Miller (3d Cir. 1943), 137 F.2d 507; American Fruit Growers, Inc. v. United States (9th Cir. 1939), 105 F.2d 722, 726; Commissioner v. Keller (7th Cir. 1932), 59 F.2d 499.

As we read them the words of the statute are plain and unambiguous, and they must be given effect as they appear in the statute. We should not attempt to read the statute other than in the manner in which it was written; nor in applying plain and unambiguous language is it necessary to search for any subtle or not readily apparent intention of the legislature. As this court stated in Bovinette v. City of Mascoutak (1973), 55 Ill. 2d 129, 133:

“The language of *** the statute is plain and certain and must be given effect by the courts. We cannot read into the statute words which are not within the plain intention of the legislature as determined from the statute itself. [Citations.] We cannot restrict nor enlarge the plain meaning of an unambiguous statute. [Citation.]”

The retirement board argues that the words “at the time of his death” refer to current annual salary, and so the salary on which the annuity is computed is the current annual salary at the time of the firefighter’s death. It is clear, however, that the words “at the time of his death” refer to “the classified position to which the firefighter was certified.” Were this not so the statute would be lacking in any indication of what the determinative time is for ascertaining the position to which the fireman was certified. The retirement board concedes that the words “at the time of his death” refer to the classified position to which the fireman was certified, but contends that they also refer to “current annual salary.” If that interpretation is well founded, there would be no need for the word “current.” That word would not be needed to tell us that the applicable salary level is the compensation the fireman was receiving on the date of his death. Each word, clause or sentence of a statute must, if possible, be given some reasonable meaning. (Hirschfield v. Barrett (1968), 40 Ill. 2d 224.) To accept the construction the retirement board advances for the words “at the time of his death” would strip the word “current” of any contribution to the meaning of the statute, thus violating the rule of statutory construction which requires a statute to be applied in a way that no word, clause or sentence is rendered superfluous or meaningless. Arnold v. Board of Trustees (1981), 84 Ill. 2d 57.

This view is supported by the last-antecedent rule of statutory construction, a rule that this court has frequently applied, most recently in Illinois Bell Telephone Co. v. Allphin (1982), 93 Ill. 2d 241. (See also City of Mount Carmel v. Partee (1979), 74 Ill. 2d 371, 375; People v. Thomas (1970), 45 Ill. 2d 68, 72; Stevens v. Illinois Central R.R. Co. (1922), 306 Ill. 370, 373.) Applying that rule, the words “at the time of his death” would refer to the last antecedent, which is “classified position,” and not to the more remote words “current annual salary.”

Another rule of construction applied by Illinois courts to statutes providing for pensions militates in favor of the construction we choose. Our court has recognized that “[t]he purpose of pension laws is beneficial” and has held that “statutes of that character should be liberally construed in favor of those intended to be benefited.” (Colton v. Board of Trustees (1919), 287 Ill. 56, 61; see also Board of Trustees v. Department of Insurance (1976), 42 Ill. App. 3d 155, 159.) The construction of section 6 — 140 which we favor takes into account the impact of inflation, a consideration which the legislature might well have had in mind in providing for fluid benefits for annuitants.

The board argues that its interpretation of the statute and the meaning it attributes to the word “current” are supported by this court’s opinions in Sup v. Cervenka (1928), 331 Ill. 459, and O’Neil v. Harding (1924), 314 Ill. 516. The language of the pension acts with which those decisions were concerned provided for paying firemen “a monthly pension equal to one-half the amount of salary attached to the rank which he may have held in such fire service at the date of his retirement.” Sup v. Cervenka (1928), 331 Ill. 459, 461.

Although in both of those cases the court concluded the pension was fixed at the amount of salary the retiree was receiving at the date of his retirement, the word “current” was not used to modify “salary” as it is in the statute being considered in this appeal. In fact, the court pointed out in Sup that the pensioners’ argument, which the court rejected, was that “the pensioner shall receive one-half of the salary currently paid to his rank.” (Emphasis added.) (331 Ill. 459, 461.) Had the legislature not used the word “current” in the 1972 amendment to the Act, Sup and O’Neil would be precedents to reckon with. We must presume that in adopting that amendment the legislature was aware of judicial decisions concerning prior and existing law and legislation. (Heineman v. Hermann (1943), 385 Ill. 191, 196; Nardi v. Segal (1967), 90 Ill. App. 2d 432, 437-38.) Thus, the legislature, by employing the word “current,” is presumed to have avoided the result reached in Sup and O’Neil and intended to adopt the meaning that those decisions rejected.

The retirement board points out that our decision would require more than doubling of the reserve account of the Firemen’s Annuity and Benefit Fund, increasing it from approximately $8 million to $19 million. We must assume that in changing the statute the legislature was cognizant of the increased expense of the type of open-ended and fluctuating public pension benefit it was adopting, and therefore the expense of the change does not justify our attempting to rewrite the statute.

In 1971, the Illinois Public Employees Pension Law Commission, which was composed of members of both houses of the General Assembly, issued a report rejecting a proposal to base the widow’s annuity on the salaries of currently employed firemen because of the substantial increase in costs that the change would entail. The retirement board regards this report as an authoritative guide to legislative intent which, it argues, the appellate court failed to consider. The short answer is that it appears that the other members of the legislature were not persuaded by the report and chose not to follow it. Rather, the amendment of the pension statute adding the word “current” represented an adoption by the legislature of the substance of the proposal to base the widow’s annuity on the salaries of active firemen which had previously been rejected by the Pension Law Commission. What could be a clearer expression of legislative intent?

Another argument advanced by the retirement board is that the legislature, by its failure to provide any mechanism for funding the increased cost of the pensions, indicated that it had no intention of adopting a plan under which amounts payable would increase as firefighters’ salaries increased. In support of this reasoning, the board points to numerous other instances in which the legislature provided financing arrangements for benefits in which future increases were contemplated. The legislature has, however, made provision for funding the expense of pensions provided for by section 6 — 140 as that section was amended in 1972. Section 6 — 169 (Ill. Rev. Stat. 1979, ch. IO8V2, par. 6 — 169) directs that the city of Chicago shall contribute such sums annually as may be required to provide widow’s pension benefits as authorized by section 6— 140. Although section 6 — 165 (Ill. Rev. Stat. 1979, ch. IO8V2, par. 6 — 165) provides ceilings on the amount which a city may raise for this purpose, there is nothing in the record to show that providing pensions in fluctuating amounts based on salaries paid firefighters from time to time would exceed the amounts the city of Chicago is authorized to levy.

The retirement board urges that we construe section 6 — 140 in the context of the pension act as a whole. Only where a statute is ambiguous on its face, however, should courts look to similar statutes as an aid to construction. (See 2A Sutherland, Statutory Construction sec. 51.01 (1973).) In Tabor v. Mason Dixon Lines, Inc. (1953), 196 Tenn. 198, 264 S.W.2d 821, the court explained that for the rule of in pari materia to be applicable, “it is necessary that the statute to be construed is ambiguous.” 196 Tenn. 198, 201, 264 S.W.2d 821, 822.

We are not confronted by ambiguity in the statute; we find section 6 — 140 clear on its face. When a statute is clear, there is no reason for courts to search for the motives of the legislature to justify giving the statute a meaning different than the words of the statute indicate, especially when in a case such as this there are no reports of legislative debates to shed light on the intention of the General Assembly. In the absence of a clear ambiguity in the statute there is no reason to consider the wording of similar pension provisions in construing the statute before us.

Even assuming that it would be proper to compare section 6 — 140 with other pension statutes, the fact that the legislature treats widows of firefighters killed in the line of duty more generously than the beneficiaries of other pension statutes is neither absurd nor impossible to understand. Nor does this indicate that the legislature has acted irresponsibly or justify applying the statute in a manner its wording does not support. When permissible under the Constitution, statutes should be interpreted and applied in the manner in which they are written. They should not be rewritten by a court to make them consistent with the court’s idea of orderliness and public policy. (In re Griffin (1982), 92 Ill. 2d 48, 52.) In People v. Wilcox (1908), 237 Ill. 421, 428, this court observed: “It is not for the courts to pass upon what the *** laws ought to be, but to declare what they are.”

For these reasons we accept the interpretation given the statute by the appellate court and affirm its judgment.

Judgment affirmed.

JUSTICE UNDERWOOD,

dissenting:

I cannot agree that the court’s interpretation of section 6 — 140 of the Illinois Pension Code (Ill. Rev. Stat. 1979, ch. IO8V2, par. 6 — 140) either reflects the intention of the legislature or promotes its goals.

The court asserts that it is unnecessary to consider the phrase “current annual salary” in the context of the statutory plan because the phrase is unambiguous. That conclusion is reached by isolating this language from the balance of the statute and ignoring the inconsistent provisions appearing elsewhere therein. When a controversy, as in this case, centers on a word or phrase, it is more important to determine the sense in which that word was used by the legislature than to ascertain its primary meaning. (City of East St. Louis v. Union Electric Co. (1967), 37 Ill. 2d 537, cert. denied (1968), 390 U.S. 948, 19 L. Ed. 2d 1136, 88 S. Ct. 1034.) Accordingly, the legislature’s intent must be garnered from an examination of the entire statutory plan. See Town of the City of Peoria v. O’Connor (1981), 85 Ill. 2d 195, 203; Chastek v. Anderson (1981), 83 Ill. 2d 502, 511; Winks v. Board of Education (1979), 78 Ill. 2d 128, 135.

It is apparent from an examination of article 6 of the Pension Code that the legislature has created a comprehensive scheme of security for firefighters and their dependents. An important feature of this scheme is its stability, which is an advantage to both the beneficiaries and defendant, providing the necessary security to allow sound financial planning. The court concedes that funding and reserve requirements of the system will be substantially increased by its interpretation, but says these requirements are not shown to be beyond the city’s capabilities. Whether this is so I cannot ascertain, for the record does not resolve this question. It is clear, however, that when the legislature desired in other instances to provide benefits which would increase in the future, it expressly provided financing for those benefits. (See Ill. Rev. Stat. 1979, ch. lOSVa, pars. 6 — 164, 6 — 164.1.) Those provisions, by carefully delineating the methods of financing, further evidence the legislative goal of establishing a financially stable benefits plan. See M. Gelfand, Seeking Local Government Financial Integrity Through Debt Ceilings, Tax Limitations, and Expenditure Limits: The New York City Fiscal Crisis, The Taxpayers’ Revolt, and Beyond, 63 Minn. L. Rev. 545, 567 (1979).

More persuasive, perhaps, is the fact that the court’s interpretation of “current annual salary” in section 6 — 140 will, I assume, also have the same effect in the other two sections which employ that phraseology. (See Ill. Rev. Stat. 1979, ch. lOSVz, pars. 6 — 148, 6 — 149.) If so, the court is then attributing to the General Assembly an intent to create the anomalous situation in which substantially greater benefits are provided to dependent parents or children of deceased firemen who had not died in the line of duty than to firemen who became disabled as a result of job-related injuries. (Compare Ill. Rev. Stat. 1979, ch. lOSVa, pars. 6— 148, 6 — 149, with Ill. Rev. Stat. 1979, ch. lOSba, par. 6— 151.) This seemingly anomalous result simply strengthens my opinion that the fixed-benefit interpretation of section 6 — 140 urged by the agency responsible for its administration is far more harmonious with the overall statutory scheme. (Cronin v. Lindberg (1976), 66 Ill. 2d 47, 63; Adams v. Jewel Companies, Inc. (1976), 63 Ill. 2d 336, 344-45.) “ Tt must be presumed that the several statutes relating to one subject are governed by one spirit and one policy and that the legislature intended [them] to be consistent and harmonious.’ ” People ex rel. Killeen v. Kankakee School District No. 11 (1971), 48 Ill. 2d 419, 423, quoting Scofield v. Board, of Education (1952), 411 Ill. 11, 20.

Admittedly, firemen are exposed to greater hazards than the average governmental employee, and persuasive arguments can be made for generous treatment of the widows of those firemen killed in the line of duty. But other municipal employees are also exposed to uncommon risks with no corresponding benefits to their widows. Police officers, for example, are subject to dangers at least as great as those facing firemen, but no similar provisions are made for the widows of those killed in the line of duty.

In fact, plaintiff is apparently unable to find in any of Illinois’ pension systems a provision for widow’s benefits such as those she argues the legislature has here provided. The reason for their absence is readily apparent, for in 1971 the Illinois Public Employees Pension Laws Commission rejected proposals to base a widow’s benefits on salaries of currently employed firemen because of the financial problems involved in funding such payments. The fact that the court’s interpretation provides benefits unique in the pension laws of Illinois, coupled with the internal inconsistencies in the Act produced by that interpretation, persuades me of the correctness of the Board’s position that the benefits are fixed at the date of the fireman’s death.

Before I would attribute to our General Assembly the type of fiscal irresponsibility which has led the city of New York and our social security system to the brink of financial disaster, I would require more convincing proof than is here evident that the Board erred in its interpretation.

JUSTICE MORAN joins in this dissent.


source: Caselaw Access Project

author: JUSTICE CLARK CHIEF JUSTICE RYAN,

license: Public Domain

text:
    (Nos. 56028, 56037 cons.
    LUELLA MOORE, Appellee, v. JACKSON PARK HOSPITAL et al., Appellants.—RICHARD ISAACS, Appellee, v. MICHAEL REESE HOSPITAL & MEDICAL CENTER et al., Appellant.-TONI GROSSMAN FENCHEL, Appellee, v. MICHAEL REESE HOSPITAL & MEDICAL CENTER, Appellant.

      Opinion filed February 18, 1983.
    Rehearing denied April 8, 1983.

      Lord, Bissell & Brook, and Wildman, Harrold, Allen & Dixon, both of Chicago (R. Dennis Rasor, Harold L. Jacobson, Hugh C. Griffin, Richard C. Bartelt, William F. Haley, and Williams R Dorr, of counsel), for appellants.
    A. J. Hardiman, Ltd., of Chicago (Terrance J. Coughlin, A. J. Hardiman, and Eugene C. Hardiman, of counsel), for appellee.
    Lord, Bissell & Brook, of Chicago (Harold L. Jacobson, Williams P. Dorr, and Hugh C. Griffin, of counsel), for appellant.
    Berger & Herman, Ltd., Alan D. Katz and David S. Pochis, Ltd., and Joel H. Fenchel, all of Chicago (Marvin L. Herman and Alan D. Katz, of counsel), for appellees.
    McLaughlin, Kinser & Bryant, of Chicago (Harry L. Kinser and Kenneth C. Robbins, of counsel), for amicus curiae Illinois Hospital Association.
    Richard M. Daley, State’s Attorney, of Chicago, and Epton, Mullin, Segal & Druth, Ltd., Special Assistant State’s Attorneys (Saul A. Epton, Thomas E. Kluczynski, and Jeffrey Singer, of counsel), for amicus curiae County of Cook.
   JUSTICE CLARK

delivered the opinion of the court:

These consolidated cases involve the validity of section 21.1 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 22.1). Section 21.1, on the date the complaints in these cases were filed, provided as follows:

“No action for damages for injury or death against any physician or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than U years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death.
If the person entitled to bring the action is, at the time the cause of action occurred, under the age of 18 years, or insane, or mentally ill, or imprisoned on criminal charges, the period of limitations does not begin to run until the disability is removed.” (Emphasis added.) Ill. Rev. Stat. 1977, ch. 83, par. 22.1.

In all three of the consolidated cases the respective panel of the appellate court reversed the Cook County circuit court’s dismissals of the causes of action based upon the rule in Illinois that an amendment shortening a statute of limitations will not be retroactively applied so as to terminate a cause of action, unless the claimant has a reasonable amount of time after the amendment’s effective date in which to file his or her claim. (Moore v. Jackson Park Hospital (1981), 101 Ill. App. 3d 1009; Isaacs v. Michael Reese Hospital & Medical Center (1981), 101 Ill. App. 3d 876.) In all three cases, application of the amendment to the statute of limitations would instantaneously bar the plaintiffs’ claims. We granted the petitions for leave to appeal in both the Moore case and in the Isaacs-Fenchel consolidated case and consolidated all three for hearing and opinion in this court.

The relevant facts in the Moore case are as follows:

On May 24, 1972, defendant Dr. Enrique Steider performed surgery on plaintiff, Luella Moore, at defendant Jackson Park Hospital. The plaintiff alleges that a needle was negligently left in her body during this surgery. On March 17, 1978, six years after the plaintiff’s surgery, plaintiff Moore had an X ray taken which showed the presence of a needle in her body. Plaintiff alleges that she did not discover the presence of the needle until that date. Plaintiff filed her complaint on October 4, 1978. The circuit court dismissed the action with prejudice on November 19, 1980, based upon this court’s holding in Anderson v. Wagner (1979), 79 Ill. 2d 295, appeal dismissed sub nom. Woodward v. Burham City Hospital (1980), 449 U.S. 807, 66 L. Ed. 2d 11, 101 S. Ct. 54.

The relevant facts in the Isaacs case are as follows:

On May 16, 1978, Richard Isaacs filed a suit against defendants, Dr. Joseph K. Calvin and Michael Reese Hospital and Medical Center. The complaint alleged.that plaintiff Isaacs had received X-ray treatments for inflamed tonsils in 1940, when he was four years old. The complaint further alleged that as a result of these treatments, he developed growths on his thyroid gland which had to be surgically removed. Plaintiff alleged that the first time he knew of his condition was in May of 1977 when defendant Michael Reese Hospital notified him of the possible dangers resulting from these X-ray treatments. Isaacs underwent corrective surgery shortly after the notice from the hospital.

The facts in the Fenchel case are similar to those in Isaacs and are as follows:

On January 29, 1980, plaintiff Fenchel filed a malpractice action against defendant Michael Reese Hospital. From 1941 to 1943 plaintiff Fenchel underwent X-ray treatment for tonsillitis. Plaintiff alleges that, as a result of these treatments, tumors developed on her thyroid gland which had to be surgically removed. The complaint alleged that the plaintiff did not have knowledge of her condition until January 31,1978.

In Anderson v. Wagner (1979), 79 Ill. 2d 295, appeal dismissed sub nom. Woodward v. Burham City Hospital (1980), 449 U.S. 807, 66 L. Ed. 2d 11, 101 S. Ct. 54, this court decided the constitutionality of section 21.1 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 22.1). Due process and equal protection arguments under both our State and Federal constitutions were raised and addressed. (Ill. Const. 1970, art. I, secs. 2, 12, 16; art. IV, sec. 13; U.S. Const., amend. XIV.) This court held that section 21.1 did not violate any of these provisions of either the Hlinois Constitution or the United States Constitution. Thus, it is unnecessary for us to repeat the reasoning and holdings regarding the constitutionality of section 21.1 under these provisions.

The sole issue to be decided in this appeal is whether the 1976 amendment to section 21.1 can be applied retroactively so as to instantaneously bar these plaintiffs’ causes of action on the effective date of the statute. Plaintiffs assert that our prior holding in Anderson v. Wagner did not address this issue. We agree with the plaintiffs that this issue was not specifically decided in the Anderson decision.

Plaintiffs assert that an amendment to a statute of limitations which decreases the time in which an action may be filed should not be applied retroactively so as to instantaneously bar their existing causes of action. We agree.

In Hupp v. Gray (1978), 73 Ill. 2d 78, this court stated, “Also, as was held in Orlicki, an amendment to a limitation statute shortening the period within which an action must be filed will be applied retroactively to actions not as yet commenced, provided there is a reasonable time after the effective date of the amendment within which to bring the action.” (Emphasis added.) 73 Ill. 2d 78, 83, citing Meegan v. Village of Tinley Park (1972), 52 Ill. 2d 354, 359.

In Orlicki v. McCarthy (1954), 4 Ill. 2d 342, this court dealt with the issue of the retroactive application of amendments to statutes of limitation. Walter Orlicki was fatally injured on July 10, 1949, while a passenger in an automobile driven by an allegedly intoxicated individual. Suit was brought by the plaintiffs under the Liquor Control Act (Ill. Rev. Stat. 1949, ch. 43, par. 135). At the time the decedent was killed, the Liquor Control Act provided that a suit could be brought within five years from the date of death. However, on August 10, 1949, the Liquor Control Act, upon which plaintiffs’ rights against the defendants were predicated, was amended, requiring that “every action hereunder shall be commenced within two years, next after the cause of action accrued.” (Ill. Rev. Stat. 1949, ch. 43, par. 135.) The plaintiffs in Orlicki filed suit on September 27, 1951, which was more than two years after the decedent’s death, and more than two years after the effective date of the amendment to the Liquor Control Act. This court held that the legislature, which created the rights under the Liquor Control Act, had the power to repeal those rights. This court reasoned that the legislature had exercised that power by amending the Act and imposing time limitations for bringing actions under the Act. Thus, this court affirmed the judgments of the circuit and appellate courts allowing the defendants’ motion to dismiss.

The Orlicki case is clearly distinguishable from the instant cases for two reasons. First, these plaintiffs’ actions are negligence actions which sound in tort and were recognized at common law; they are not statutorily created remedies. Second, in the Orlicki case, the plaintiffs had two years after the effective date of the amendment of the Liquor Control Act in which to bring their action. In Orlicki, this court stated, “[I]t is our judgment that the time limitation amendment [of the Liquor Control Act] should be retroactively applied, on the ground that the legislature so intended, and that it is procedural in character.” (4 Ill. 2d 342, 354.) The intention of the legislature as to the applicability of the 1976 amendment to section 21.1 will be discussed later in this opinion. “Changes in procedure or existing remedies will not be applied retrospectively, however, where a vested, constitutionally protected right will be deprived by such application.” (Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 390-91, citing Hogan v. Bleeker (1963), 29 Ill. 2d 181.) “Remedies are the life of rights, and are equally protected by the constitution. Deprivation of a remedy is equivalent to a deprivation of the right which it intended to vindicate, unless another remedy exists or is substituted for that which is taken away.” (Hogan v. Bleeker (1963), 29 Ill. 2d 181, 187, citing Board of Education v. Blodgett (1895), 155 Ill. 441.) “Whether acting through its judiciary or through its Legislature, a state may not deprive a person of all existing remedies for the enforcement of a right, which the state has no power to destroy, unless there is, or was, afforded to him some real opportunity to protect it.” (Brinkerhoff-Faris Trust & Savings Co. v. Hill (1930), 281 U.S. 673, 682, 74 L. Ed. 1107, 1114, 50 S. Ct. 451, 454-55.) The plaintiffs in the instant cases were not afforded any opportunity to exercise their rights under section 21.1; therefore we hold that the statute cannot be applied retroactively so as to bar the plaintiffs’ causes of action instantaneously upon its effective date.

In medical malpractice cases in which the discovery rule is applied the cause of action accrues when the plaintiff knows or reasonably should know of an injury and also knows or reasonably should know that it was wrongfully caused. (Witherell v. Weimer (1981), 85 Ill. 2d 146, 156; see also Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 169; Lipsey v. Michael Reese Hospital (1970), 46 Ill. 2d 32, 40.) The defendants in the Moore case cite West American Insurance Co. v. Sal E. Lobianco & Son. Co. (1977), 69 Ill. 2d 126, 131, for the proposition that, “without accrual there can be no cause of action.” The defendants interpret this statement to mean that without accrual no cause of action “exists.” Therefore, the defendants argue, the rule regarding statutes which shorten the time in which a “pre-existing” cause of action can be brought, did not apply to plaintiff Woodward’s claim in Anderson and does not apply to plaintiff Moore’s claim. Defendants assert that in neither case had the cause of action “accrued” prior to the enactment of the amendment to the statute of limitations, and thus their causes of action were nonexistent for purposes of the statute. We do not agree that a cause of action is nonexistent prior to the time of accrual. Logic dictates that a plaintiff cannot bring a cause of action until he knows or reasonably should know of his injury, and also knows or reasonably should know that the injury was caused by the wrongful acts of another. However, that does not mean that the plaintiff does not have an existing cause of action of which he is unaware.

The Anderson case was consolidated with the Woodward case for decision in our court. In the Anderson case the plaintiffs had at least eight months after the discovery of their injury, and before the effective date of the 1976 amendment of the statute of limitations, in which to file their claim. In the Anderson decision, this court held only that the plaintiffs in the Anderson case had a reasonable time after the effective date of the 1976 amendment in which to file their claim (79 Ill. 2d 295, 323), and therefore we held that their cause of action was barred.

In the Woodward case, which was consolidated with the Anderson case, however, the plaintiff was instantaneously barred from bringing his claim by the 1976 amendment to section 21.1, which amendment was in effect at the time his claim was filed. Plaintiff Woodward discovered his injury in February of 1976. He did not file his claim until December 30, 1976, which was nine months after the discovery of his injury and three months after the effective date of the 1976 amendment. In any event, plaintiff Woodward was barred instantaneously from bringing his cause of action because the act alleged to have been the cause of his injury had occurred more than four years before. We held that plaintiff Woodward’s claim was barred. Anderson, of course, did not involve the question with which we are here confronted and is not applicable here. We do not here hold that the 1976 amendment would not apply to any injury sustained after its effective date of September 19, 1976, no matter when it is discovered.

The period which is scrutinized by the courts for its reasonableness is that time between the statute’s effective date and the date on which the preexisting cause of action would be barred under the new statute as applied. (Balzer v. Inland Steel Co. (1981), 100 Ill. App. 3d 1071, 1072-73; Hupp v. Gray (1978), 73 Ill. 2d 78, 83; Arnold Engineering, Inc. v. Industrial Com. (1978), 72 Ill. 2d 161, 166; Jones v. Brill (1981), 97 Ill. App. 3d 943, 944-45.) In the instant cases there was no time whatsoever for these plaintiffs to file their actions after the effective date of the 1976 amendment to the statute of limitations. Since the statute of limitations which was in effect when their causes of action arose was' shortened, and they were not given any time after the effective date of the 1976 amendment in which to file their claims, we cannot hold that the reasonable time period required to allow retroactive application of the statute can be found.

In Anderson we decided that the plaintiffs had at least eight months between the statute’s effective date (Sept. 19, 1976) and the time the shortened four-year limitation period expired (May 20, 1977) in which to file their claim. The Andersons also had 16 months after they alleged that they learned they had a claim against the defendant in which to bring their claim.

In the instant cases plaintiffs have an unusual statutory dilemma. When their causes of action arose they had either an unlimited amount of time, or 10 years in the case of foreign objects (Ill. Rev. Stat. 1967, ch. 83, par. 22.1), in which to bring their causes of action, as long as they brought their claims within two years of when they knew or reasonably should have known of their injury.

The plaintiff in the Moore case asserts that foreign-object medical malpractice cases should be treated differently than all other medical malpractice cases for purposes of the statute of limitations. The plaintiff argues that because foreign-object cases were treated as special cases prior to the 1976 amendment, that the legislature still intended them to be treated differently after 1976. This court, in dicta in Anderson, stated, “In 1976 section 21.1 was again amended deleting the special provisions concerning foreign objects left in the body and providing that all malpractice actions against physicians and hospitals arising out of patient care shall not be brought more than 2 years after the claimant knew or should have known of the existence of the injury but in no event more than 4 years after the date on which occurred the last act or omission alleged to have been the cause of such injury.” (Emphasis added.) (79 Ill. 2d 295, 307.) The appellate court in Moore interpreted An derson to mean that foreign-object cases were no longer exceptional cases for purposes of the statute of limitations. (101 Ill. App. 3d 1009, 1013.) We agree with the appellate court that the language in section 21.1 of the 1976 amendment unambiguously applies to all medical malpractice claims against physicians and hospitals.

The applicability of the 1976 amendment to section 21.1 is at issue in these three cases. However, it should be noted that in 1975 the legislature had also amended section 21.1, providing for a 10-year cutoff period in foreign-object cases, and a five-year cutoff period in all other medical malpractice cases. In 1975, the legislature provided that Public Act 79 — 960, which contained the 1975 amendment to section 21.1, “[did ] not apply to or affect any actions pending at the time of its effective date.” (1975 Ill. Laws 2894.) In 1976, however, when section 21.1 was again amended, the legislature did not expressly state which actions the new amendment applied to. The legislature stated, “This amendatory Act takes effect 30 days after it becomes a law and the changes made in the Civil Practice Act by Section 8 apply only to civil actions filed after this Act takes effect.” (1976 Ill. Laws 1359.) Section 8 deals with the Civil Practice Act and is not relevant to the issue at hand.

“ ‘The question whether a statute operates retrospectively, or prospectively only, is one of legislative intent. In determining such intent, the courts have evolved a strict rule of construction against a retrospective operation, and indulge in the presumption that the legislature intended statutes, or amendments thereof, enacted by it to operate prospectively only, and not retroactively.’ ” (People ex rel. Manczak v. Carpentier (1954), 3 Ill. 2d 556, 558-59.) In 1976, the Hlinois legislature did not clearly indicate its intention as to the applicability of the 1976 amendment. Since there is no express language as to retroactive application, we must give section 21.1 a prospective construetion. This is the only equitable and rational solution to the dilemma the plaintiffs in these cases face.

In New York, California, and Indiana, legislation similar to section 21.1 has been enacted in response to what has been seen as a national medical malpractice crisis. In all three States, the legislation sets a similar outside limit on the time in which a medical malpractice action can be brought, just as our statute states that “in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged to have been the cause of such injury or death.” However, in these three States the legislature provided for prospective application of the statute. The Indiana Statute states that “[t]he provisions of [the Medical Malpractice Act] do not apply to any act of malpractice which occurred before July 1, 1975” (the statute’s effective date). (Ind. Code 16— 9.5 — 1—7 (1982 Supp.).) (See Adams v. Luros (Ind. 1980), 406 N.E.2d 1199, 1201.) In 1975, the New York legislature in enacting CPLR 214 — a, expressly provided that the new section dealing with medical malpractice would “be applicable to any act, omission or failure occurring on or after [July 1, 1975]” (the statute’s effective date). (1975 N.Y. Laws, ch. 109, sec. 37; see Cooper v. Edinbergh (1978), 97 Misc. 2d 143, 146, 410 N.Y.S.2d 962, 964.) In California, the Code of Civil Procedure, section 340.5, specifies an outside limit on the period after a plaintiff’s injury in which an action for “professional negligence” may be commenced regardless of the patient’s belated discovery of the cause of action. However, in Brown v. Bleiberg (1982), 186 Cal. Rptr. 228, the court explained that the statute shortening the limitations period which was enacted in 1970, after the plaintiff’s operation, could not be given retroactive effect “so as to wipe out plaintiff’s claim,” but the legislature could shorten the period of limitations so long as plaintiff was given a reasonable time in which to sue. (186 Cal. Rptr. 228, 233-34.) The court stated, “A statute shortening the statute of limitations may be interpreted prospectively to avoid constitutional problems which would attend retro-activity.” 186 Cal. Rptr. 228, 234.

So, while the Illinois legislature’s response to the medical malpractice crisis may effectively limit the time in which future plaintiffs (plaintiffs whose injuries occur after the effective date of the 1976 amendment) can bring an action, we will not read into the statute a retroactive application so as to instantaneously extinguish a cause of action that existed prior to the amendment. Such an interpretation in the absence of an expressed intention in the amendment that it apply retroactively will not, in view of such an unusual and unfair result, be inferred.

Not only did the legislature in 1976 shorten the time in which these plaintiffs’ claims could be brought, but also the trial court, in applying the statute retroactively, instantaneously barred these plaintiffs’ causes of action on the effective date of the amendment to the statute of limitations. Given the unusual circumstances in these cases we hold that these plaintiffs’ claims should not have been automatically barred and their causes of action should not have been automatically dismissed for failure to comply with the four-year cutoff provision of the statute. Instead the court should have determined whether these actions were filed within a reasonable time after the effective date of the 1976 amendment.

Accordingly, for all the reasons stated, the judgments of the appellate court are affirmed and these causes of action are remanded to the circuit court for proceedings consistent with this opinion.

Affirmed and remanded.

CHIEF JUSTICE RYAN,

specially concurring:

Although I do not disagree with the holding of my colleagues in this case, I do not agree with some of the conclusions and reasoning of the majority opinion and I, therefore, specially concur.

The majority opinion states that “we must give section 21.1 a prospective construction.” (95 Ill. 2d at 235-36.) However, the majority then holds that the causes of action should not have automatically been dismissed for failure to comply with the four-year cutoff provision of that section. Instead, the opinion states that the court should have determined whether these actions were filed within a reasonable time after the effective date of the 1976 amendment. The causes are then remanded to the trial court, where such a determination must be made. The opinion is not consistent, and the two parts of the opinion just referred to are contradictory.

If the 1976 amendment is to be given prospective application as the opinion first states, then it would not apply to these cases at all and they would be governed by the prior statute of limitations. “A prospective statute, as its name implies, operates on conduct, events, and circumstances which occur after its enactment.” (2 A. Sutherland, Statutory Construction sec. 41.01, at 245 (4th ed. 1973).) By holding that the trial court must determine whether the causes of action were filed within a reasonable time after the effective date of the 1976 amendment, the court is applying the amendment to these cases; that is, it is applying the 1976 amendment retroactively. I agree that it should be applied retroactively to these cases and that the trial court should determine whether the cases were filed within a reasonable time after the effective date of the 1976 amendment.

The general rule is that there is a presumption in favor of prospective application of amendatory legislation. (People ex rel. Manczak v. Carpentier (1954), 3 Ill. 2d 556, 559.) However, in Orlicki v. McCarthy (1954), 4 Ill. 2d 342, this court held that statutes of limitation are procedural in nature and, as such, should be applied retroactively unless a contrary intent is apparent. The majority opinion attempts to distinguish the holding of this court in Orlieki from the cases now before us. The majority notes that Orlieki involved a statutorily created remedy, whereas the present cases are based on common law negligence. This distinction has nothing to do with the holding in Orlieki that statutes of limitations are procedural and are to be applied retroactively. Whether such a statute may be applied retroactively to cut off a cause of action is another matter, and will be discussed later.

Prior to Orlieki, the decisions in this State on this subject were not uniform. However, Orlieki settled the question in this State in conformity with the accepted law on this subject. (See 2 A. Sutherland, Statutory Construction sec. 41.09, at 281 (4th ed. 1973); Annot., 79 A.L.R.2d 1080 (1961).) The intent of the legislature that the amendment should apply retroactively is revealed in the language of the amendment. In Orlieki the court found an expression of intent that the amendment be applied retroactively in the language of the amendment under consideration in that case, which stated, “every action hereunder shall be commenced within two years next after the cause of action accrued.” (Orlicki v. McCarthy (1954), 4 Ill. 2d 342, 353.) The language of the amendment in our case is just as clear:

“No action for damages for injury or death *** shall be brought more than 2 years after the date on which the claimant knew *** of the existence of the injury *** but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence ***.” (Ill. Rev. Stat. 1981, ch. 83, par. 22.1.)

This language speaks not of future actions but is a limitation on the bringing of all actions.

Another statutory-construction aid which Orlieki found compelling is equally compelling in our case. Orlieki stated that legislative intent may be derived not only from the language used, but also from the evil to be remedied:

“The evil to be eliminated by the amendment was the prolonged liability for a period of five years of dram shop owners and operators, who rarely have any actual knowledge of the events upon which their liability is based. The statutory objective of eliminating this prolonged liability would be effectuated by giving the amendment a retroactive application.” (Orlicki v. McCarthy (1954), 4 Ill. 2d 342, 353.)

The evil to be eliminated by the amendment to the dram-shop act in Orlicki is strikingly similar to the evil sought to be eliminated by the amendment we are now considering. In Anderson v. Wagner (1979), 79 Ill. 2d 295, 305-11, this court noted that the evil the legislature attempted to eliminate by the amendment to the limitation statute involved the extended exposure to liability by the application of the discovery rule to medical malpractice cases. This court stated in Anderson:

“The discovery rule was thought to have played a significant role in the medical malpractice crisis.” (Anderson v. Wagner (1979), 79 Ill. 2d 295, 307.)

Here, as in Orlicki, the statutory objective of eliminating this prolonged liability would be effectuated by giving the amendment retroactive application.

Although the 1976 amendment should be retroactively applied, I agree with the majority that it cannot be applied in such a manner as to deprive one of a vested right. The injured party must have a reasonable time after the effective date of the amendment within which to bring an action. (Hupp v. Gray (1978), 73 Ill. 2d 78.) Under the discovery rule as applied in this State, a “cause of action accrues when the plaintiff knows or reasonably should know of an injury and also knows or reasonably should know that the injury was caused by the wrongful acts of another.” (Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 169.) The amendment to the Limitations Act cannot be applied retroactively to cut off on the effective date of the amendment the causes of action that have accrued prior to the effective date of the enactment. The injured person whose cause of action accrued before the effective date of the amendment must be given a reasonable time, after the effective date, within which to file his complaint. In Anderson v. Wagner this issue was addressed as to the plaintiff Anderson. However, the Woodwards, who were also plaintiffs in the consolidated Anderson case, alleged they learned of the malpractice in February 1976. The amendment became effective in September of 1976 and the Woodwards filed suit on December 30, 1976. The question of the reasonableness of this period of time in which to file suit was not passed on in Anderson. The case did not hold that the Woodwards were instantaneously barred from filing suit by the 1976 amendment, as stated in the majority opinion.

I view the causes of action that accrued before the effective date of the 1976 amendment as falling within the category of cases usually referred to as involving “vested rights,” which cannot be terminated by the amendment. The owner of these vested rights must be given a reasonable time after the effective date of the amendment within which to file suit. I view the causes of action that did not accrue until after the effective date of the amendment differently. The majority opinion states that these causes of action existed even before the injured person had the necessary knowledge to give them vitality as accrued causes of action. That may well be, but in that state of existence, they were inchoate in nature and not vested. The general rule is that where a statute affects inchoate rights, it will be construed retroactively if the legislative intent clearly indicates that retroactive operation is intended. 2 A. Sutherland, Statutory Construction sec. 41.04, at 253 (4th ed. 1973).

However, whether these causes of action are called inchoate or vested is not determinative of whether a limitation statute shortening the period should be construed so as to automatically terminate the causes of action. The question of the validity of the application of a statute rests on subtle judgments concerning the fairness or unfairness of applying the new statutory rule to affect interests which accrued out of events which transpired when a different prior rule of law was in force. One fundamental consideration of fairness is that settled expectations honestly arrived at with respect to substantial interests ought not to be defeated. (2 A. Sutherland, Statutory Construction sec. 41.05, at 260-61 (4th ed. 1973).) The determination of whether the application of the statute unreasonably infringes upon the rights of those to whom it applies involves a balancing and discrimination between reasons for and against the application of the statute to this class of individuals. 2 A. Sutherland, Statutory Construction sec. 41.05, at 259 (4th ed. 1973).

Although the rights of an injured person before obtaining knowledge of his cause of action, as noted above, are inchoate, I do not believe that these rights should be terminated by a statutory amendment on its effective date. The rule of reasonableness should be applied to these inchoate rights similar to its application to accrued or vested rights. This rule of reasonableness can be applied within the framework of and in accordance with the legislative intent manifested in the 1976 amendment.

The amendment under consideration actually contains two limitation periods: a limitation on the time within which the suit must be filed (two years), and a limitation on the time within which the injured person must discover that a cause of action exists (four years). The 1976 amendment we are considering was preceded by an amendment in 1975. Prior to the 1975 amendment, there was no outside limitation on discovery. All that was required was that the suit had to be started within two years after discovery of the cause of action. The 1975 amendment placed an outside limitation of five years within which the cause of action had to be discovered and suit started. The 1976 amendment lowered that outside limitation to four years. In order to protect these inchoate rights or causes of action, if the occurrence out of which they arose happened more than four years before the effective date of the 1976 amendment, not only would I hold that the injured person should have a reasonable time after his cause of action accrued, that is, after he discovered he had a cause of action, within which to file his complaint, but I would also hold that the injured person would have a reasonable time after the effective date of the amendment within which to discover that cause of action existed.

It is clearly the intent of the General Assembly as expressed in this amendment that the time within which the cause of action may be discovered cannot remain open ended. The language of the amendment clearly indicates that the limitations stated in the amendment apply to all actions filed for medical malpractice. The amendment specifically states that in no case shall an action be filed more than four years after the date of the occurrence.

In balancing the rights of injured persons against the need to correct the evil of the extended exposure to liability created by the discovery rule, the legislature concluded that it was reasonable to require that an injured person discover and commence his medical malpractice action within four years after the occurrence. Consistent with this intent is a requirement that a person injured prior to the effective date of the 1976 amendment must discover his cause of action and file his complaint within four years after the effective date of the amendment. A person who was negligently injured by a medical practitioner one day after the effective date of the 1976 amendment loses his right to file a suit for recovery for his injuries if his suit has not been filed within four years after the occurrence. It is reasonable to require that a person similarly injured one day before the effective date of the 1976 amendment discover his cause of action and file his suit within four years after the effective date of the amendment. It is true that this application of the amendment may terminate a right to file suit before an individual becomes aware of his injury. However, this is also true of those who are injured after the effective date of the amendment. We noted in Anderson that such a termination of a cause of action has been held not to constitute a due process violation. Anderson v. Wagner (1979), 79 Ill. 2d 295, 311-12.

For the reasons herein stated, I specially concur in the holding of the majority opinion.

UNDERWOOD and MORAN, JJ., join in this special concurrence.


author: JUSTICE CLARK

text:
    (No. 56393.
    (No. 56394.
    WAUKEGAN COMMUNITY UNIT SCHOOL DISTRICT NO. 60 et al., Appellees and Cross-Appellants, v. THE CITY OF WAUKEGAN et al., Appellants and Cross-Appellees.—ILLINOIS BELL TELEPHONE COMPANY, Appellant, v. THE VILLAGE OF OAK PARK et al., Appellees.

      Opinion filed February 8, 1983.
    Rehearing denied April 8, 1983.

      Diver, Bollman, Grach, Quade & Lessman, of Waukegan (Robert E. Lessman and Newton E. Finn, of counsel), for appellant and cross-appellee City of Waukegan.
    Donald M. Lonchar, Jr., and John G. Radosevich, of Lonchar, Nordigian & Radosevich, of Waukegan, for appellee and cross-appellant Waukegan Community Unit School District No. 60.
    The Law Offices of David N. Barkhausen, of Waukegan, for appellee and cross-appellant David N. Barkhausen.
    Fred L. Foreman, State’s Attorney, of Waukegan (Helen S. Rozenberg, Assistant State’s Attorney, of counsel) for appellee and cross-appellant County of Lake.
    M. R. Conzelman, of Waukegan, for appellee and cross-appellant North Shore Sanitary District.
    Peter B. Freeman, Garland H. Allen, and Michael D. Renner, of Hopkins & Sutter, of Chicago, for appellee and cross-appellant North Shore Gas Company.
    Michael S. Basofin, of Basofin & Webne, of Evanston, and John G. Radosevich, of Lonchar, Nordigian & Radosevich, of Waukegan, for interveners Bryant H. Prentice III, Leo Gideon, and Donna Keeler.
    Lawrence D. Lasky, Richard M. Lipton, and Donald C. Clark, Jr., of Chicago (Isham, Lincoln & Beale, of counsel), for amicus curiae Commonwealth Edison Company.
    James R. Bryant, Jr., Michael J. Karson, and John T. Lenahan, of Chicago, and Ellis E. Fuqua, of Fuqua, Winter, Wysoki & Stiles, Ltd., of Waukegan, for appellant Illinois Bell Telephone Company.
    Arthur C. Thorpe and Sara A. Hanson, of Klein, Thorpe & Jenkins, Ltd., of Chicago, for appellee Village of Oak Park.
    Jack M. Siegel, of Chicago, for appellee City of Evanston.
    Ronald M. Glink and Peter M. Rosenthal, of Ancel, Glink, Diamond, Murphy & Cope, P.C., of Chicago, for appellee Village of Rosemont.
    Michael S. Basofin, of Basofin & Webne, of Evanston, and John G. Radosevich, of Lonchar, Nordigian & Radosevich, of Waukegan, for interveners Bryant H. Prentice III, Leo Gideon, and Donna Keeler.
    Lawrence D. Lasky, Richard M. Lipton, and Donald C. Clark, Jr., of Chicago (Isham, Lincoln & Beale, of counsel), for amicus curiae Commonwealth Edison Company.
   JUSTICE CLARK

delivered the opinion of the court:

This case involves the consolidation of two appeals: one arising out of thrée cases consolidated before the circuit court of Lake County (hereafter the Waukegan cases: Waukegan Community Unit School District No. 60 et al. v. City of Waukegan, 81 MR 266; David N. Barkhausen et al. v. City of Waukegan et al., 81 CH 725; County of Lake v. City of Waukegan, 81 CH 729, consolidated before the circuit court of Lake County) and a similar case brought before the circuit court of Cook County (hereafter the Oak Park case: Illinois Bell Telephone Company v. Village of Oak Park, City of Evanston and Village of Rosemont, 82 L 3405, circuit court of Cook County).

Shortly after this court rendered its decision in Commercial National Bank v. City of Chicago (1982), 89 Ill. 2d 45, certain appellants filed suit against the city of Waukegan to have its 5% municipal utility tax on utility companies and its 3% consumer utility tax declared unconstitutional. After a hearing, the circuit court of Lake County held that the 5% utility tax suffered no unconstitutional infirmity, but did hold that the 3% consumer utility tax was unconstitutional based upon this court’s decision in Commercial National Bank. Both holdings are before this court.

A similar suit was filed by Illinois Bell Telephone against the villages of Oak Park and Rosemont, and the city of Evanston, alleging similar constitutional infirmities with the consumer utility tax ordinances adopted by those communities. The circuit court of Cook County, however, held for the communities and found the ordinances to be constitutional. Both cases are now before this court under Rule 302(b) (73 Ill. 2d R. 302(b)) and were consolidated on March 27,1982.

In the Oak Park case plaintiff-appellant Illinois Bell Telephone Company (hereafter Illinois Bell) brought a declaratory judgment action challenging the constitutionality of the various tax ordinances enacted by the municipalities of Oak Park, Evanston and Rosemont. Each municipality filed a motion to dismiss for failure to state a cause of action.

On March 19, 1982, the circuit court of Cook County granted the defendants’ motion to dismiss. Illinois Bell elected to stand on its complaint and appeals from the order of dismissal. Illinois Bell contends that the home rule taxes at issue are prohibited by article VII, section 6(e), of the 1970 Constitution and that the defendants should be permanently enjoined from imposing or enforcing these taxes.

Pursuant to Supreme Court Rule 302(b) we ordered a direct appeal, and we consolidated this case with the cases arising out of Lake County.

On March 31, 1982, by an order of this court Bryant H. Prentice and Leo Gideon of Evanston, and Donna Keeler of Oak Park were permitted to intervene. Each of the forementioned parties are persons who have used and continue to use public utilities in these respective municipalities. Prentice, Gideon and Keeler had challenged the validity of the Evanston and Oak Park taxes in a separate class action suit. Their petition to intervene had previously been denied by the circuit court.

The other actions consolidated in this appeal challenge the constitutionality of Waukegan’s “consumer utility tax,” which is substantially identical to utility taxes enacted by Oak Park, Evanston and Rosemont.

In addition to challenging Waukegan’s consumer utility tax, plaintiffs North Shore Sanitary District, Waukegan Community Unit School District No. 60 (hereafter School District No. 60) and the County of Lake (collectively “plaintiff local government units”) separately challenged the Waukegan municipal utility tax imposed by Waukegan upon the utilities pursuant to section 8 — 11—2 of the Illinois Municipal Code (Ill. Rev. Stat. 1981, ch. 24, par. 8 — 11—2). The plaintiff local government units alleged that the Waukegan municipal utility tax impermissibly regulates and taxes their affairs.

By an order entered May 5, 1982, nunc pro tunc as of March 10, 1982, the Lake County circuit court held that the Waukegan consumer utility tax is an unauthorized tax upon occupations prohibited by article VII, section 6(e)(2), of the Illinois Constitution of 1970, but that the Waukegan municipal utility tax is a validly authorized and constitutional ordinance and does not regulate or tax the affairs or property of the plaintiff local government units. The court enjoined the utilities from further billing of the consumer utility tax, required the utilities to remit all collected consumer utility taxes to the city of Waukegan (to be held pendente lite in a special protest fund), and ordered Waukegan to refund the protest fund, together with any interest earned on the protest fund, to the utilites to be credited against their existing customer accounts. The court further ordered that the utilities keep and maintain all documents, records and information necessary for such a refund in the same manner as they have been kept in the ordinary course of business.

On March 15, 1982, Waukegan appealed from that portion of the circuit court’s order finding that 3% consumer utility tax to be unconstitutional. On March 22, 1982, the North Shore Sanitary District filed a notice of cross-appeal seeking reversal of various portions of the March 10 order, including the dismissal of the sanitary district’s complaint challenging the constitutionality of the Waukegan municipal utility tax and the court’s findings that the Waukegan tax is duly authorized and valid and neither regulates nor taxes the affairs or property of the plaintiff local government units. On March 26, 1982, the County of Lake filed a notice of cross-appeal on the same issues. School District No. 60 filed a notice of cross-appeal on March 23, 1982, on the same issues and added a challenge to the refund provision contained in the March 10 order. On March 23, 1982, plaintiff cross-appellant David Barkhausen filed a notice of cross-appeal objecting to the refund mechanism established by the court, the record-keeping duties imposed on the utilities, and the failure to require utilities to pay interest on their collection of consumer taxes, as well as the consumer taxes themselves, into the protest fund. Barkhausen further requested this court to direct the circuit court to certify an alleged class and to accept Barkhausen as representative plaintiff for that class.

We first address the issue of whether the imposition of the “consumer utility tax” by the defendant municipalities (the city of Waukegan, the village of Oak Park et al.) is a valid exercise of home rule powers or is an invalid and impermissible occupations tax in violation of section 6(e) of article VII of the 1970 Illinois Constitution (Ill. Const. 1970, art. VII, sec. 6(e)).

The claims of the defendants that the “consumer utility taxes” at issue are not occupation taxes are in direct conflict with this court’s decision in Commercial National Bank v. City of Chicago (1982), 89 Ill. 2d 45 (hereinafter referred to as Commercial National Bank).

The holding in Commercial National Bank, which the cities of Waukegan and Evanston and the villages of Rosemont and Oak Park seek to avoid here, is squarely applicable in this case because public utilities are engaged in service occupations. We said in Commercial National Bank that “it was the consensus of the convention that taxes upon occupations should not be imposed by home rule units unless legislatively authorized and that this limitation was specifically considered in relation to the imposition of taxes on services.” (89 Ill. 2d 45, 53.) Our holding in Commercial National Bank controls the outcome of this issue in the instant case.

Public utilities are engaged in rendering a service. This court held in Peoples Gas Light & Coke Co. v. Ames (1934), 359 Ill. 152, that the retailers’ occupation tax did not apply to public utilities because those corporations are not in the business of selling tangible personal property, but are in the business of providing a public utility service. (See also Farrand Coal Co. v. Halpin (1957), 10 Ill. 2d 507; Automatic Voting Machine Corp. v. Daley (1951), 409 Ill. 438; Illinois Bell Telephone Co. v. Ames (1936), 364 Ill. 362.) An examination of the statute reveals that the defendants’ characterization of the consumer utility tax ordinance as a tax on products is contrary to the plain language of this ordinance. The language used in all of the ordinances is very similar. The village of Oak Park ordinance provides in pertinent part:

“[A tax is imposed] on the consumers of goods and services purchased from the following:
A. Persons sending messages by means of electricity at a rate of [_%] of the gross cost of such messages originating within the corporate limits of the [municipality].
B. Persons engaged in the business of distributing, supplying, furnishing or selling gas for use or consumption within the corporate limits of the [municipality] and not for resale at a rate of [_%] of the gross cost thereof.”
C. Persons engaged in the business of distributing, supplying, furnishing or selling electricity for use or consumption within the corporate limits of the [municipality] and not for resale at the rate of [_%] the gross cost thereof.” (Village of Oak Park Ordinance 1974 — 0—5, sec. 1 (1974).)

Each of the ordinances provides that the taxes are to be collected from consumers by the public utility providing the service in question and remitted by such utility to the respective municipalities.

Undoubtedly the North Shore Gas Company and Commonwealth Edison Company provide the products of gas and electricity to their respective customers. However, those products are provided as a part of a service to the utilities customers. The argument of defendants that Illinois Bell provides the product of “message units” is not persuasive. But assuming that the argument is accepted, the message units are also provided as part of telephone service to consumers. That service includes the maintenance of facilities and equipment that allows the customers to use their telephones and light and heat their homes. The term “service,” in the context of Illinois tax law, has generally been held to include all “sales” transactions other than sales of tangible property. (See, e.g., Illinois Power Co. v. Mahin (1978), 72 Ill. 2d 189.) It is our conclusion today that in accord with the Commercial National Bank holding that article VII, section 6(e), of the 1970 Constitution prohibits all taxes applicable to transactions principally consisting of the sale of “services,” the taxes at issue today are taxes on the sale of services and are therefore prohibited.

Waukegan, Oak Park, Evanston and Rosemont claim that the legal incidence of the “consumer utility tax” falls upon the consumers and not the utilities. However, Commercial National Bank makes clear that a simple declaration that the legal incidence of the tax is on the consumer is not sufficient to avoid the constitutional restrictions against occupation taxes enacted without express legislative authorization. We said in Commercial National Bank that “the practical operation of the entire ordinance, not just the simple declaration that the tax is on the purchaser, must be judged against the intent expressed by the delegates to the constitutional convention in determining whether the tax imposed by the ordinance falls within the proscription of section 6(e) of article VIL” (Commercial National Bank v. City of Chicago (1982), 89 Ill. 2d 45, 65.) “The declaration that the tax *** is on the purchaser is *** not consistent with the constitutional restriction on taxes upon occupations but is an attempt to erode, diminish or evade the intent expressed in the constitutional convention.” (89 Ill. 2d 45, 64.) Viewed in their entirety the consumer utility taxes at issue are, in practical operation, attempts to impose a tax upon the services the utilities provide to the general public. Like the city of Chicago in Commercial National Bank, Waukegan, Oak Park, Evanston and Rosemont have unsuccessfully “attempted to convert an occupation tax into a tax upon consumers.” (89 Ill. 2d 45, 66.) Upon close analysis the only significant difference between the consumer utility taxes at issue here and the 5% utility occupation tax (enacted pursuant to section 8 — 11—2 of the Illinois Municipal Code) is contained in section 1 of the respective consumer utility ordinances. That section literally places the legal incidence of the tax on the consumers. However, we again recall what we said in Commercial National Bank: “[M]agic words” are no longer determinative in analyzing a home rule tax on the sale of services. We recognized in Commercial National Bank that “[t]he mere recitation in the ordinance that the tax is upon purchasers of services does not eliminate the evils the delegates to the convention sought to prevent.” 89 Ill. 2d 45, 67.

The analysis we articulated in Commercial National Bank applies equally to the taxes challenged in this appeal. The home rule ordinances at issue tax services and place all of the responsibility for the tax on the persons engaged in the business of providing those services. The taxes themselves are measured solely by reference to the “gross cost” of the services, which is defined as “consideration paid,” i.e., the gross receipts of the utility. No provision is made for the collection of unpaid taxes from the consumer; it is rather the utility that faces the burden of record keeping and the penalty for failing to pay the taxes.

In practical operation the consumer utility taxes at issue are “occupation taxes” within the meaning of article VII, section 6(e), and are prohibited.

MUNICIPAL UTILITY TAX

The school district, the sanitary district and the County of Lake also object to the imposition of both the statutory municipal utility tax as well as the city of Waukegan’s consumer utility tax on them. Their objection is that both taxes impermissibly regulate those public corporations. As far as the municipal utility tax is concerned, the assertions of the school district, the sanitary district and the County of Lake that each should be exempt are without merit.

The statutes authorizing the municipal imposition of the municipal utility tax state that the tax is imposed upon the “occupations” of utilities (Ill. Rev. Stat. 1981, ch. 24, par. 8 — 11—2) and that the economic burden of the tax is recovered by the utilities from their customers, not as taxes, but as “additional charge[s]” for utility service (Ill. Rev. Stat. 1981, ch. lll2/3, par. 36(a)). As utility customers, the plaintiff local government units can claim no tax exemption, since they are not taxpayers. Commonwealth Edison Co. v. Community Unit School District No. 200 (1976), 44 Ill. App. 3d 665 (hereinafter Edison); Agron v. Illinois Bell Telephone Co. (7th Cir. 1971), 449 F.2d 906 (hereinafter Agron).

The appellate court, in Edison, described the rule applicable to a customer school district’s claim of exemption:

“[T]axes passed on to exempt bodies in the form of higher prices are not necessarily invalid. [Citations.]
The school district argues that, since the burden of the tax is passed on to it, it is the ‘taxpayer,’ citing East St. Louis v. Union Electric Co. [citation]. It is clear that the incidence of the tax rests on the utilities, even if its burden does not, since if the tax is not paid by the utility, it is the only one from whom the city may seek to collect. (See Martin Oil Service Inc. v. Department of Revenue, 49 Ill. 2d 260, 263 (1971).) ‘It is the legal incidence of the tax that controls.’ (First National Bank v. Jones [citations].) Accordingly it is the utility not the school district which is the taxpayer. The fact that the utility while not required to, may as a general practice pass the tax on to the purchaser does not change the character of the tax. (First National Bank v. Jones [citation].) Nor does the fact that the subscribers must inevitably provide the money for the payment of the tax through a special charge.” (44 Ill. App. 3d 665, 670-71.)

While this court held in Getto v. City of Chicago (1979), 77 Ill. 2d 346, that utility customers who had borne the economic burden of the municipal utility tax thereby obtained standing to challenge the validity of that tax, that decision carefully distinguished between the issues of standing and legal incidence, citing with approval the Seventh Circuit Court of Appeals’ holding in Agron that the municipal utility tax is an “occupation tax” whose legal incidence is upon utilities as a matter of Illinois law. (77 Ill. 2d 346, 354-55.) Such precedent confirms that the plaintiff local government units are required to bear the economic burden of the municipal utility tax, and they have no grounds upon which to assert a taxpayer’s exemption from that tax.

Hlinois courts have repeatedly held that a tax imposed or expressly authorized by the General Assembly, such as the municipal utility tax, is presumptively and validly applied to local government units, unless the General Assembly has expressly exempted such units by statute or by preemptive legislation. People v. Deep Rock Oil Corp. (1931), 343 Ill. 388; see Board of Education v. City of McHenry (1979), 71 Ill. App. 3d 904; cf. Board of Education v. City of Peoria (1979), 76 Ill. 2d 469.

In People v. Deep Rock Oil Corp. (1931), 343 Ill. 388, Deep Rock Oil made a sale of approximately $70,000 of gasoline to the city of Chicago. It did not pay tax due to the State of Illinois under the Motor Fuel Tax Act. Deep Rock Oil argued that the gasoline sold to the city of Chicago was used for municipal purposes and was exempt by law from taxation. The city of Chicago filed an amicus curiae brief on behalf of Deep Rock Oil. The court held the tax on the use of gasoline was an excise or privilege tax and not a property tax. Examining the city’s contention that it was exempt from such a tax, the court said:

“In support of the city’s second point — i.e., that municipalities are exempt from paying the tax imposed by the Motor Fuel Tax Act — counsel have cited Cooley on Taxation and cases of other jurisdictions adopting the rule that because municipalities are parts of the government and it will not be presumed that the government intended to tax branches of itself, municipalities are exempt unless it specifically appears in the act of the legislature that such taxation was intended. Such is not the rule in this State. Statutes exempting property from taxation must be strictly construed. All presumptions are against the intention of the State to bind itself by exempting property from taxation. [Citations.] This rule applies equally to private persons, private corporations and municipalities. [Citations.] General language imposing a tax applies equally to cities, counties and other municipal corporations, and the property of such municipalities is not exempt unless made so by clear and specific language of the statute. [Citations.] 343 Ill. 388, 400-01.

Chicago and Deep Rock Oil also argued that since the Motor Fuel Tax Act was directed to “persons” it was meant to exclude local governmental entities. In dismissing this argument, the court stated, “It is a sufficient answer to say that by the fifth clause of section 1 of the act relating to construction of statutes, (Smith’s Stat. 1929, chap. 131, sec. 1,) the word ‘person’ or ‘persons’ may extend and be applied to bodies politic and corporate as well as individuals.” 343 Ill. 388, 401.

The General Assembly expressly authorized municipalities to impose the municipal utility tax and did so without exemption or preemption relating to local government units and has enacted a separate statute, section 36(a) of the Public Utilities Act, expressly authorizing utilities to recover their municipal utility tax liabilities from “customers,” again without exemption for local government units (Ill. Rev. Stat. 1981, ch. lll2/3, par. 36(a)).

The power to impose municipal utility taxes has been granted by the Illinois Municipal Code to all Illinois municipalities since 1955. Despite amendments to the municipal utility tax enabling act, the General Assembly has not seen fit to alter the legislative scheme or to create exemptions for local governmental units, all of which are concededly utility customers for purposes of the Public Utilities Act.

The school district’s preemption arguments, based on this court’s decision in City of Peoria and the constitutional duty to provide free schools are irrelevant in this context. The imposition of the municipal utility tax upon utilities, as well as the transfer of the economic burden of that tax to utility customers, has been expressly authorized by the General Assembly. The provision of “free schools” does not entail an exemption from the economic burdens of valid tax legislation. The Constitution does not prohibit the General Assembly from authorizing cities to impose an occupation tax upon utilities, simply because the tax incidentally increases the school district’s costs for utility services. In the Edison decision, another school district’s identical claim to an exemption from the municipal utility tax was rejected on the ground that such taxes are imposed on utilities, not customers. The County of Lake’s extraterritorial-effect objection to the tax is also misguided. The appellate court spoke to a similar objection in the Edison case.

“The school district’s contention that the ordinance has an unauthorized extraterritorial effect is likewise without merit. The ordinance, which follows the language of the statute, merely taxes the utilities’ business in Wheaton. There is no tax on business of the utilities not within the city. The additional charge related to the city tax is made only to customers receiving utility service in buildings within the city limits. The fact that the school district receives tax revenues from persons outside the city is irrelevant because the municipal utilities tax is imposed upon the utilities not upon the school district ***. Moreover, such an effect is not authorized; the extraterritorial effect here has clearly been approved by the legislature which both permitted the initial tax and its being passed on.” (Commonwealth Edison Co. v. Community Unit School District No. 200 (1976), 44 Ill. App. 3d 665, 672.)

The county also misses the point that the General Assembly has authorized the transfer of the economic burden of the municipal utility tax to all utility customers. Ill. Rev. Stat. 1981, ch. III2/3, par. 36(a).

We therefore conclude that the statutory municipal utility tax as applied to the objecting local government units is valid.

PROTEST FUNDS

On February 24, 1982, the circuit court of Cook County ordered that all monies collected by Hlinois Bell and remitted to the defendant municipalities, pursuant to the consumer utility taxes at issue, be treated as being paid under protest with a trust being imposed on that amount. The court order also provided that the municipalities “[m]ay use the proceeds of the taxes but shall remain liable to account therefor if this court so provides.”

Prior to our consideration of the case, this court was asked by the intervenors Prentice, Gideon and Keeler to require that the city of Evanston and the village of Oak Park order Hlinois Bell, Northern Illinois Gas and Commonwealth Edison to submit all payments collected as a result of the taxes into a special fund. The same movants also requested that the court order the defendant municipalities to pay into the special fund all monies received by them in trust, under the circuit court order of February 24, 1982. We agree with the movants that the money in the trust fund should be paid into a special fund. We further find that all payments collected pursuant to the consumer utility tax in Oak Park, as well as Evanston and Rosemont, should be deposited in a special fund with the appropriate refunds to be overseen by the circuit court.

The circuit court of Lake County had ordered a refund of the consumer utility tax and set forth the specific method of the refund. Proceeds of the special protest fund were to be paid over to the utility companies and “thereafter credited against the then existing utility accounts.”

Appellant David N. Barkhausen contends that the circuit court order should have required the utilities to account for all interest earned on the consumer utility tax revenues billed and collected prior to their remittance to the special protest fund.

Contrary to appellant Barkausen’s contention, we find that, in collection and remittance of taxes in precise accordance with their duties under the respective consumer utility ordinances, the utilities cannot be deemed to be unjustly enriched. The utilities are, however, not entitled to be compensated for expenses incurred in collecting the consumer utility tax.

We further find that interest that has accrued on the protest fund established in Lake County is refundable to the consumers along with the corpus of the fund. In the past the court has held that in the absence of a statute or agreement to the contrary, interest is not normally recoverable. (Lakefront Realty Corp. v. Lorenz (1960), 19 Ill. 2d 415.) The circumstances in Lake County differ from the situation presented to the court in Lakefront Realty. Presuming that interest income has been earned on the protest fund established in Lake County, it is recoverable as an incident of the protest fund itself. See Town of City of Peoria v. O’Connor (1981), 85 Ill. 2d 195, 207.

The situation in Cook County, however, is more akin to the circumstances the court was confronted with in Lakefront Realty. No money was available in Lakefront Realty and it is presumed that no money is available in the instant case in Cook County to pay the interest. No protest fund was ever established in Cook County. The consumers are therefore not entitled to an interest award since no interest has been generated by a special protest fund.

Finally David N. Barkhausen contends that his request of the circuit court of Lake County to have all the Waukegan taxpayers certified as a class and himself as a representative of that class should have been granted. If Mr. Barkhausen seeks to pursue this remedy, as the mechanism for refunds is established, he may raise the issue of class certification at a hearing in the circuit court. A proponent of a class action has the burden of establishing the statutory prerequisites, and the court must find them present before it can sanction maintenance of the action as a class action. (McCabe v. Burgess (1979), 75 Ill. 2d 457, cert. denied (1979), 444 U.S. 916, 62 L. Ed. 2d 170, 100 S. Ct. 230.) No such finding has been made in the instant case, and Mr. Barkhausen has not demonstrated before this court that he has satisfactorily established the statutory prerequisites.

In summation, we affirm the order of March 15, 1982, entered by the circuit court of Lake County upholding the constitutionality of the 5% statutory utility tax and striking down Waukegan’s 3% home rule consumer utility tax as an unconstitutional occupation tax. We reverse the order of March 19, 1982, entered by the circuit court of Cook County that dismissed the complaint and declared that the consumer utility taxes at issue are constitutional exercises of home rule powers. We remand to the circuit courts of Lake and Cook counties with directions to oversee the distribution of the previously collected consumer utility taxes in accordance with this opinion.

56393 — Affirmed and remanded, with directions.

5639k Reversed and remanded, with directions.


author: JUSTICE UNDERWOOD

text:
    (No. 57054.
    CESAR ALANIZ, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Abex Corporation-Amsco Division, Appellee).

      Opinion filed March 25, 1983.

    Cornfield and Feldman, of Chicago (Linzey D. Jones, of counsel), for appellant.
    Raymond M. Simard, of Discipio, Martay, & Caruso, of Chicago, for appellee.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Claimant, Cesar Alaniz, suffered a hernia on June 10, 1977, arising out of and in the course of his employment as a maintenance repairman for respondent, Abex Corporation-Amsco Division. An Industrial Commission arbitrator awarded compensation under the Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.1 et seq.) for temporary total incapacity, but concluded that claimant had failed to prove that his injury resulted in any permanent disability for which benefits were payable. That decision was affirmed by the Commission, and subsequently confirmed by the circuit court of Cook County. Claimant appealed directly here pursuant to our Rule 302(a) (73 Ill. 2d R. 302(a)).

Claimant testified that his injury occurred when he and a fellow employee were removing a metal casting weighing 75 to 200 pounds from a hydraulic ramp. They slipped on some oil and fell with the casting coming to rest on claimant’s knee. He felt pain in the right groin and back, going down into the right leg. He sat in the office for the remainder of his shift and the next morning reported to the company nurse, who sent him to Dr. Bonick, the respondent’s doctor. The diagnosis was acute right inguinal strain. He saw Dr. Bonick on two occasions, receiving pain pills and returning to work each time.

Two and one-half weeks after the injury claimant went to his own physician, Dr. Florcruz, who diagnosed the hernia, hospitalized him from June 27 to July 2, and surgically repaired the hernia. Claimant returned to work on August 29. He also testified that he had suffered a hernia on the left side which was not work related, and which had been operated on about a year earlier.

Claimant further stated that at the time of the March 1979 hearing before the arbitrator he experienced “pain in my groin and go to my leg and back” when stooping and lifting heavy objects. Further questioning indicated the areas involved were the right leg and the “right side of the back just below the belt.” He also stated that Dr. Florcruz had not treated either his leg or back and that he had seen no doctor since last visiting Dr. Florcruz about two weeks after returning to work. Claimant also testified that as a result of a heart condition unconnected to the injury he had been restricted to lighter duty at work involving no climbing and lifting no more than 30 pounds.

Copies of medical and hospital reports were admitted into evidence. Claimant relies principally upon the report of Dr. Robert Busch, who examined him in December 1978. Dr. Busch diagnosed claimant’s condition as “Bilateral lumbosacral strain sciatic radiation spasm right, radicular radiation spasm left. Right Sciatica. Left Radiculitis. Traumatic industrial hernia right inguinal area. Post-operative scarring right inguinal area. Myositis musculature right inguinal area.” It was agreed that Dr. Busch would, if present, testify in response to a hypothetical question that there could be a causal relation between the conditions of ill-being and the June 10 incident.

Dr. Florcruz’ report of his physical examination of claimant indicated no problem other than the hernia, and thé hernia-operation explanation indicated a favorable prognosis. The doctor’s summary when claimant was discharged indicated he had done well and repeated the favorable prognosis.

A report of a June 21, 1978, examination of claimant by Dr. A. J. Sweeney was offered by respondent and admitted with the understanding that if called as a witness the doctor would testify to the objective findings contained in the report. The only paragraph therein which seems to contain “findings” reads: “EXAMINATION reveals a well healed right inguinal hernia repair scar. There is no evidence of hernia on either side and the external genitalia are normal.”

Claimant also testified that at the time of the March 1979 hearing he continued to suffer pain when stooping and lifting heavy objects. Although he had returned to work following the surgery he was restricted to lighter duty. According to his testimony, however, the restriction was the result of a heart condition and unconnected with the hernia.

Claimant now urges that his hernia constituted a serious and permanent injury resulting in physical impairment. He contends that the legislature, by amending section 8(d) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.8(d)) in 1975, specifically intended to provide benefits for such injuries under section 8(d)(2) without proof of a resulting loss in earnings. The relevant portion of section 8(d)(2) provides:

“2. If, as a result of the accident, the employee sustains serious and permanent injuries not covered by paragraphs (c) and (e) of this Section, or having sustained injuries covered by the aforesaid paragraphs (c) and (e), he shall have sustained in addition thereto other injuries which injuries do not incapacitate him from pursuing the duties of his employment but which would disable him from pursuing other suitable occupations, or which have otherwise resulted in physical impairment; or if such injuries partially incapacitate him from pursuing the duties of his usual and customary line of employment but do not result in an impairment of earning capacity, or having resulted in an impairment of earning capacity, the employee elects to waive his right to recover under the foregoing subparagraph 1 of paragraph (d) of this Section, then in any of the foregoing events, he shall receive in addition to compensation for temporary total disability under paragraph (b) of this Section, compensation at the rate provided in subparagraph 2 of paragraph (b) of this Section for that percentage of 500 weeks that the partial disability resulting from the injuries covered by this paragraph bears to total disability.” (Ill. Rev. Stat. 1975, ch. 48, par. 138.8(d)(2).)

We note that the language of the subsection under which claimant’s injury falls provides coverage for “serious and permanent injuries not covered by paragraphs (c) and (e) of this Section.” (Ill. Rev. Stat. 1975, ch. 48, par. 138.8(d)(2)), but makes no reference to physical impairment, as distinguished from disability, for which compensation is provided.

It is unnecessary for us to decide whether claimant’s view of section 8(dX2) is correct, however, since there is no evidence in this record indicating that claimant’s hernia resulted in any permanent partial disability or impairment, or, if so, the extent thereof in relation to total disability. Consequently, the Industrial Commission’s conclusion that claimant did not suffer any permanent injury for which benefits are payable cannot be said to be contrary to the manifest weight of the evidence even if claimant’s interpretation of section 8(dX2) were to be accepted. See Globe Cab Co. v. Industrial Com. (1981), 86 Ill. 2d 354; Shockley v. Industrial Com. (1979), 75 Ill. 2d 189. Compare Walden v. Industrial Com. (1979), 76 Ill. 2d 193; Shockley v. Industrial Com. (1979), 75 Ill. 2d 189.

The judgment of the circuit court, confirming the decision of the Industrial Commission, is accordingly affirmed.

Judgment affirmed.