{
  "id": 2580772,
  "name": "City of Nokomis, Plaintiff-Appellant, v. Richard K. Smith, Defendant-Appellee",
  "name_abbreviation": "City of Nokomis v. Smith",
  "decision_date": "1966-08-25",
  "docket_number": "Gen. No. 66-69",
  "first_page": "211",
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    "id": 8837,
    "name": "Illinois Appellate Court"
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  "last_updated": "2023-07-14T19:21:29.887226+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "City of Nokomis, Plaintiff-Appellant, v. Richard K. Smith, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "MORAN, J.\nThis action was prosecuted by the City of Nokomis against Richard K. Smith for the violation of City Ordinance No. 527, which provides in part that \u201cit shall be unlawful for any person, firm or corporation to, at any time hereafter, sell, solicit, or distribute any goods, wares, or merchandise, including newspapers and magazines, from house to house or from door to door in the City of Nokomis,\u201d unless certain information is submitted to the City Clerk.\nRichard Smith was engaged in collecting premiums from existing policyholders and interviewing prospective customers for applications for health and accident coverage at the time of his arrest. The court granted the defendant\u2019s motion to dismiss the complaint, stating that \u201cthe ordinance is vague as to what constitutes solicit,\u201d that the defendant\u2019s activities were not included within the purview of the ordinance, and that \u201cthere is no municipal power in Illinois to regulate or license solicitors\u201d since no such power was granted by the legislature. On appeal, the City of Nokomis argues that it did have the power to enact Ordinance No. 527 and that the collection of premiums and the interviewing of prospective customers constitute the sale, solicitation, or distribution of goods, wares or merchandise within the purview of the ordinance.\nIt has long been recognized in Illinois that the \u201cjudicial power to determine the constitutionality of legislation is to be exercised only when it is essential to the disposition of a case.\u201d Donoho v. O\u2019Connell\u2019s, Inc., 18 Ill2d 432, 164 NE2d 52; Osborn v. Village of River Forest, 21 Ill2d 246, 171 NE2d 579. If the activities of the defendant do not come within the purview of the ordinance, it will be unnecessary to consider the constitutional and statutory authority of the City to enact the ordinance.\nWebster\u2019s Third New International Dictionary defines \u201cgoods\u201d and \u201cwares\u201d as tangible, movable personal property having intrinsic value and \u201cmerchandise\u201d as the wares of commerce or as goods which are bought and sold in commerce. In Davis v. Hincke, 264 Ill 46, 105 NE 708, the expression \u201cgoods and chattels\u201d was interpreted to extend to \u201cthe visible and tangible articles of personal property of which actual possession may be had and delivered,\u201d but not necessarily to \u201cchoses in action which are incapable of manual delivery, to promissory notes or other securities which are only evidences of indebtedness, or to money the loan of which passes the title to the particular pieces and only creates an indebtedness from the borrower to the lender.\u201d The court went on to hold that the meaning must depend upon the subject matter and the context of the particular statute. In Banta v. City of Chicago, 172 Ill 204, 50 NE 233, the court held that \u201cthe phrase \u2018goods, wares, and merchandise\u2019 includes and comprehends shares in the capital stock of incorporated companies, and other securities which are the subject of barter and sale,\u201d implying that marketability is essential.\nOn the other hand, insurance has been defined to be \u201can agreement by which the insurer, for a consideration, agrees to indemnify the insured against loss, damage, or prejudice to certain property described in the agreement, for a specified period, by reason of specified perils.\u201d Barnes v. People ex rel. Moloney, 168 Ill 425, 48 NE 91; Patterson v. Durand Farmers Mut. Fire Ins. Co., 303 Ill App 128, 24 NE2d 740. Health and accident insurance is not something which has marketability and can be the subject of barter and sale in the commercial market. This type of insurance is nothing more than an indemnity against a future loss which may or may not occur. Hence the collection of premiums and the interviewing of prospective customers does not constitute the sale, solicitation, or distribution of goods, wares, or merchandise within the purview of the statute.\nThe same issues raised on this appeal were considered recently by the Supreme Court of South Dakota in City of Gregory v. Clausen, 78 SD 208, 99 NW2d 833, wherein the court held that, due to the ordinary meaning of the words \u201cgoods, wares, merchandise, and insurance,\u201d \u201cit is evident that the ordinance did not apply to the activity of defendant in making house to house solicitations of applications for insurance.\u201d We agree.\nFor the foregoing reasons, the judgment of the Circuit Court of Montgomery County, Illinois is affirmed.\nJudgment affirmed.\nGOLDENHERSH and EBERSPACHER, JJ., concur.",
        "type": "majority",
        "author": "MORAN, J."
      }
    ],
    "attorneys": [
      "Kenneth E. Moss, of Nokomis, and Harold Broverman, Broverman & Broverman, of Taylorville, for appellant.",
      "Michael Frey, of Chicago, and Paul M. Hickman, of Hillsboro, for appellee."
    ],
    "corrections": "",
    "head_matter": "City of Nokomis, Plaintiff-Appellant, v. Richard K. Smith, Defendant-Appellee.\nGen. No. 66-69.\nFifth District.\nAugust 25, 1966.\nKenneth E. Moss, of Nokomis, and Harold Broverman, Broverman & Broverman, of Taylorville, for appellant.\nMichael Frey, of Chicago, and Paul M. Hickman, of Hillsboro, for appellee."
  },
  "file_name": "0211-01",
  "first_page_order": 217,
  "last_page_order": 220
}