dissenting:
I would affirm the decision of the trial court. As that court noted, although official attempts to conserve limited public funds are to be commended, the general assistance article of the Illinois Public Aid Code (Ill. Rev. Stat. 1979, ch. 23, pars. 6 — 1 through 6 — 7) does not allow the township supervisor to treat a grant of general assistance benefits as a loan.
The general assistance article of the Code, which is involved here, provides neither for requiring repayment of benefits nor for placing a lien on real estate to secure repayment of benefits. In contrast, other articles of the Code do so provide. For example, only the article governing aid to the aged, blind, and disabled (Ill. Rev. Stat. 1979, ch. 23, pars. 3 — 1 through 3 — 15) allows the State to place a lien on real property of the recipient, and this provision exempts that property occupied by the recipient as a homestead and valued at less than $25,000. (Ill. Rev. Stat. 1979, ch. 23, par. 3 — 10.) This article also allows the State to file a claim against the estate of the deceased recipient for the full amount of benefits paid. (Ill. Rev. Stat. 1979, ch. 23, par. 3— 9.) The medical assistance article allows the State to have a charge against all claims, demands and causes of action for injuries for which persons received medical assistance benefits. Ill. Rev. Stat. 1979, ch. 23, par. 11 — 22.
A well-settled rule of statutory construction requires that the enumeration of a power in one section of a statute implies the prohibition of that power in another, silent, section of the statute. (Roth v. Department of Public Aid (1982), 109 Ill. App. 3d 457, 460.) Applying that rule here, since the legislature provided for repayment of medical benefits and for a lien to secure the repayment of aid to the aged, blind, and disabled, it prohibits a lien to secure repayment of general assistance benefits. This conclusion is supported by the fact that the administrative article provides for voluntary repayment benefits. (Ill. Rev. Stat. 1979, ch. 23, par. 11 — 14.) This provision would not be necessary if compulsory repayment were generally permitted.
The majority found that imposing the lien here was within the township supervisor’s discretion under section 6 — 2 to determine the “amount and nature” of general assistance benefits (Ill. Rev. Stat. 1979, ch. 23, par. 6 — 2), and within the supervisor’s general assistance administrative powers. (Ill. Rev. Stat. 1979, ch. 23, pars. 12 — 21, 12— 21.2, 12 — 21.8.) It found that this discretion gave the supervisor the authority to impose the lien.and also found that the exercise of that discretion provided consideration for the contract. The majority, applying the reasoning in Miller v. Department of Public Aid (1981), 94 Ill. App. 3d 11, 17, holds that the broad governmental discretion granted in the general assistance program allows the supervisor to obtain a contractual right to recover general assistance benefits as a condition of granting them and that to hold otherwise would unreasonably constrict that discretion.
The Miller court found that the language in section 6 — 2 (Ill. Rev. Stat. 1979, ch. 23, par. 6 — 2), “[pjayments may also be made to provide persons receiving basic maintenance support with necessary treatment, care and supplies required because of illness or disability” (emphasis added) (Ill. Rev. Stat. 1979, ch. 23, par. 6 — 2), gave the Illinois Department of Public Aid discretion not to make additional payments for optical and nonemergency dental services.
Miller does not provide support for the conclusion that the township supervisor may determine whether persons found eligible for general assistance benefits may receive those benefits, themselves, based on criteria not found in the statute and contrary to statutory intent. This goes beyond the statutory discretion allowed. As the Miller court stated, “IDPA is given discretion under the Code to determine the extent and types of assistance to be forthcoming under the GA program within the broad borders which the statute outlines.” (Emphasis added.) 94 Ill. App. 3d 11, 19.
Under the Illinois Public Aid Code, the local governmental unit charged with administering general assistance benefits, in this case the township, must give aid to eligible persons. (Ill. Rev. Stat. 1979, ch. 23, pars. 2 — 14, 6 — 1, 12 — 3, 12 — 21.8.) Although responsibility for the administration of the general assistance program is “vested” in the township units (Ill. Rev. Stat. 1979, ch. 23, par. 12 — 21), this power is subject to the supervision of the Illinois Department of Public Aid. (Ill. Rev. Stat. 1979, ch. 23, par. 12 — 3.) The township’s discretion may be increased if it accepts no State money (see Ill. Rev. Stat. 1981, ch. 23, par. 6 — 2), but there is no evidence in the record that Libertyville Township accepts no State money. The aid given is a grant. (Ill. Rev. Stat. 1979, ch. 23, par. 2 — 3.) The recipient may repay this grant voluntarily, but the repayment must state clearly that it was made without compulsion. (Ill. Rev. Stat. 1979, ch. 23, par. 11— 14.) Thus, the township supervisor lacks the broad discretion the majority found.
The majority, applying the reasoning in Cozart v. Winfield (7th Cir. 1982), 687 F.2d 1058, found that the requirement of an agreement to repay general assistance benefits regulated the “nature” of benefits granted, within section 6 — 2 of the Illinois Public Aid Code (Ill. Rev. Stat. 1981, ch. 23, par. 6 — 2), much as the requirement of a 30-day wait before an employee fired for cause could receive general assistance benefits regulated the “nature” of benefits. However, the regulation in Cozart required the eligible recipient only to wait 30 days before receiving benefits, whereas under the practice considered here, the eligible recipient may not receive benefits without agreeing to repay them by contracting for a lien on realty. This does not regulate the “nature” of benefits, but rather the grant, itself, of the benefits.
While the township may have general statutory authority to acquire a lien by contract, the township has no authority to impose a lien to recover a general assistance grant absent a statutory provision. (See Nelson v. Fogelstrom (1972), 5 Ill. App. 3d 804, 806 (aid to aged, blind and disabled; no lien on personalty allowed where a statute provided only for a lien on realty).) Further, to hold that this contract to create a lien is supported by consideration is to hold that the supervisor had discretion to deny an eligible person aid and to declare the State-created grant a loan. Since the legislature has specifically provided for liens only to recover aid to the aged, blind and disabled, and since it specifically exempts liens against homesteads in that case, I would find that conditioning the receipt of general assistance on executing a contract creating a lien on the homestead exceeds the supervisor’s discretion and is contrary to legislative intent.