The oil used as a preservative of wooden paving blocks is produced by distillation from coal tar, and the method or process of distilling or manufacturing the oil was not referred to or limited either in the ordinance or the specifications, but the specifications furnished a test for the quantity or percentage of tar acid in the product. Coal tar is a common product from coal in making coke and illuminating gas, and tar acid is a natural element of coal tar, but coal tar varies greatly in the percentage of tar acid contained, the average being about three per cent. There may be a pure distillate of coal tar without having an appreciable percentage of tar acid in it or a pure distillate may have five per cent tar acid or more, and the coal tar which contains less than five per cent of tar acid may have tar acid added to it by mixing it with other coal tars. There are oils distilled from coal tars which would meet the requirements of the ordinance but would not meet the specifications upon which bids were called for. The Republic Creosoting Company is a distiller of coal tar and produces in large quantity oil containing not less than five per cent tar acid. It was alleged in the bill, and experts testified on the hearing, that the production of such an oil would be an infringement of the Reilly patent, but we are of the opinion that the position cannot be maintained. While more of the coal tar produced at the different coke and gas plants will yield less than five per cent of tar acid, the evidence shows that if the tar is deficient in acid content it may be increased by mixing with other coal tar or perhaps otherwise increasing the percentage of acid, and there is no exclusive right or privilege of engaging in that business. Anyone can buy coal tar and make selections of such as have a sufficient tar acid content and with a suitable equipment may produce the oil specified. Peter C. Reilly, the patentee, testified that anyone who saw fit could produce oil with five per cent acid and its production would not be an infringement of his patent, and we think that that state ment must be accepted as correct. It appears, however, that experts of great knowledge and experience regarded the production of the specified oil as an infringement of claims 1, 2 and 3 of the Reilly patent, which justifies an assumption that bidders would so regard it. The Republic Creosoting Company shipped to Chicago in the previous year 400,000 gallons of the contract oil, filling all the requirements of the city, so that it appears, as a practical question, that it had a monopoly of that business in Chicago under these specifications, which had been employed by the city since 1914. Taking it to be true that the production of the contract oil is not an infringement of the Reilly patent, the specifications were equally unlawful and restrictive of bidding if the Republic Creosoting Company had a monopoly of the production of the oil. The vice-president of the American Tar Products Company testified that his company was a distiller of coal tar and was the second in size in the United States and had several plants; that his company had inquiries for the so-called Chicago oil, but they had no such oil. The chief engineer of the Jennison-Wright Company of Toledo testified that his company could not get the Chicago contract oil and he did not know where the oil could be had. It was stipulated that the vice-president of the Central Creosoting Company of Chicago had applied to the Barrett Company, (the largest distiller of coal tar in the United States,) the American Tar Products Company, the J. F. Lewis Company, and other distillers, to furnish creosote oil for paving block purposes according to the Chicago specifications and could not get such oil and did not know where it could be had; that Grant Shipley, of the Ohio Wood Preserving Company of Pittsburg, would testify that his company and two affiliated companies were in the business of creosoting wood paving blocks, and he had applied to the companies above named and other distillers of coal tar and was unable to procure oil meeting the specifications because the distillers were unable to make such oil, and that G. W. Fry, of the Compressed Wood Company of Cincinnati, would testify that he had applied to the above named companies and other distillers and had been unable to secure the oil specified, for the reason that the companies did not make that oil. The necessary conclusion is that among the large number of companies engaged in distilling coal tar the specifications limited bidders to the product of one. There was evidence that tar acid adds to the preservative quality of the oil and aids in detecting adulteration with the products of petroleum. It is probably true that as a germicide coal tar adds to the preservative quality of oil and may be one test of adulteration, but it is not a guaranty against adulteration, and the fact that it adds to the preservative quality of the oil or aids in detecting adulteration does not meet the objection that competition was restricted or prevented. It is, of course, of much importance that a municipality should be able to obtain the best material and secure the best and most enduring improvement, but at the same time, under the statute, it must not be the victim of monopoly in procuring the best results. Section 74 of the Local Improvement act provides that all contracts. for the making of any public improvement to be paid for wholly or in part by special assessment or special tax shall be let to the lowest responsible bidder, and any provision which tends to restrict such competition is unlawful. (Siegel v. City of Chicago, 223 Ill. 428; Chicago Title and Trust Co. v. City of Chicago, 224 id. 124; Village of Rossville v. Smith, 256 id. 302; City of Rockford v. Armour, 290 id. 425.) The specification of an oil produced by but one of the many distillers of coal tar restricted competitive bidding and was therefore unauthorized and unlawful. The judgment of the Appellate Court is affirmed. CARTER and THOMPSON, JJ., dissenting. (No. 13256.-Judgment reversed.) THE PERRY COUNTY COAL CORPORATION, Plaintiff in Error, vs. THE INDUSTRIAL COMMISSION et al.-(SAMUEL COILS, SR., Defendant in Error.) Opinion filed June 16, 1920-Rehearing denied October 8, 1920. WORKMEN'S COMPENSATION-award cannot be sustained for defect of sight caused by pre-existing disease. An award for partial loss of use of an eye cannot be sustained, where the evidence shows that the defective vision is in both eyes because of a pre-existing disease and is not due to nor aggravated by an injury to the claimant's eye, which he had received while he was at work. WRIT OF ERROR to the Circuit Court of Perry county; the Hon. GEORGE A. CROW, Judge, presiding. R. W. ROPIEQUET, for plaintiff in error. Mr. CHIEF JUSTICE CARTWRIGHT delivered the opinion of the court: Samuel Coils, Sr., was employed by the Perry County Coal Corporation in its mine, and on September 26, 1918, while he was breaking coal with a sledge, a small particle of rock flying from the sledge struck his left eye and lodged there. Medical and surgical aid were furnished by the employer, and he applied for compensation, alleging a loss or injury to his sight from the accident. Upon a hearing the arbitrator found that he had sustained fifty per cent loss of the sight of the eye and made an award accordingly. On petition for review of the decision of the arbitrator the Industrial Commission confirmed the decision and award. On a writ of certiorari from the circuit court of Perry county the decision of the Industrial Commission was affirmed and a writ of error was allowed by this court to bring the record here for review. There was no dispute concerning the facts. Coils went to a doctor, who found the particle of rock lodged in the outer coating of the eye, at the junction of the iris and the white of the eye. There was some inflammation of the eyelids but none of the iris, and the particle of rock had not gone through the outer or sclerotic coat of the eye. Coils returned to his work on September 30 and worked at his regular employment continuously up to the time of the hearing, in March, 1919, with the exception of a few chance days, not exceeding four or five in all. On February 16, 1919, Coils went to a specialist in diseases of the eye, who upon examination found that his sight was defective; that there was a defect in the vision of both eyes and the pupils did not re-act alike. The vitreous or jelly-like substance in the posterior of the eyes, behind the lenses and pupils, was filled with floating foreign bodies, which the doctor called "exudates." Coils had suffered an injury to his right eye, for which he received compensation. The doctor testified that the lens and iris of each eye were normal and the defect was due to the floating exudates or foreign bodies, which were not caused by and had no relation to the accident for which compensation was claimed; that the accident was not such as to increase or aggravate the existing condition, and that the condition was due to a pre-existing disease of many years' standing. Coils testified that he did not know there was anything wrong with the vision of his left eye before the accident, but after the accident he could not see as good as he did before and had to look closely at objects to see what they were. However that may be, the evidence was conclusive that the dimness of vision was not caused by the injury complained of. Whether Coils had a pre-existing disease, and if so, whether it affected his eyesight or not, the only evidence in the case was that his vision was not affected by the accident. The finding of the arbitrator, confirmed by the commission and the circuit court, was without foundation because the defective vision was not caused by the accident. Therefore the judgment of the circuit court is reversed. Judgment reversed. |