States appraiser's laboratory at the port of Philadelphia. As to the results of his analysis he testified: Q. Mr. McSorley, will you please testify in detail what you found Exhibit 1 to be? Q. Please give it to us?-A. On analysis I found this oil to be, to consist of a mixture of 81 per cent of oil, 2 per cent of ash, the ash consisting of a mixture of carbonate of soda and sodium sulphate, and 16 per cent of volatile matter, which is mostly water. The oil portion of it consists of 12 per cent saponifiable, and 87 per cent unsaponifiable oil. The saponifiable oil on examination was found to be either a vegetable or an animal oil. The details of that test I will go into if you want me to, but I don't think it would mean anything to you. Q. Go ahead.-A. I have no knowledge as a chemist of any mineral oil or petroleum of any character, Russian oils or American oils, in which it is possible to saponify 10 per cent of the oil, nor is any mineral oil which I am familiar with emulsifiable with water, unless it contains sulphonated oil. By sulphonated oil, I mean sulphonated animal or vegetable oil. In no textbook with which I am familiar as a chemist is it stated to the extent of 10 per cent. You can not sulphonate a mineral oil. If this compound had decomposed and the unsaponifiable portion of the sulphonated portion be crystalized in alkali, one finds that it contains crystals of phytosterol, which is an alkali occurring in vegetable oils. WITNESS. Exhibit 1 consists of a mixture of oil, mineral matter, and water and that the oil portion is approximately 88 per cent mineral oil and 13 per cent saponifiable vegetable oil. I am unable to find any authority, and I am unable to do so myself to sulphonate, or saponify mineral oil, and it is the sulphonated portion of this mixture which gives its potency, its virture of emulsifying with water. Whether this oil after importation is mixed with other oils is of no interest in so far as the Government is concerned. As a matter of fact it is what is this oil when it comes in? I am also familiar to some extent with the residue of the refining of American oils, mid-continent oils, Mexican oils, and Eastern, and none of these oils compare at all with this material. They are all black viscous oils, used for road building and things of that sort; none of them are oils of this character. That is all I want to say. (Pp. 37-39.) The other, Doctor Sadtler, a consulting analytical chemist, submitted what purports to be a report of the analyses of two samples of the involved merchandise. This report was received in evidence without objection and marked Exhibit 10. It is as follows: SCHLIEMANN COMPANIES (INC.),, 53 Park Place, New York, N. Y. GENTLEMEN: We have analyzed the two samples of oil you sent us with the following marks: No. 1. Lab. No. 24962. U. S. appraiser's laboratory. Sept. 25, 1925. Laboratory No. 2167. Invoice designation, Acid Sludge. Entry No. C4251. Marks, ESOW. Consignor, consignee, Schliemann & Co. Required, composition. Protest No. 142909-G. Appraiser's sample. We have made a great many analyses of sulphonated oils in this laboratory, in fact are having such samples for analysis constantly. We have never seen any sulphonated oils in any way like these samples. In the first place, sulphonated oils always contain considerably more water than found in these samples. We have probably never tested such an oil with less than 20% of water, and they generally run 30% or more. i With regard to the combined sulphur trioxide, these figures are entirely too low for sulphonated oil. Even if the sulphonated oil is greatly diluted by the presence of water, mineral oil, or unsulphonated vegetable oil, the figures that we have found have always run above 2%. In a good sulphonated oil they generally run about 5% or better. For sulphonated oil with the amount of separated acids found here the figure would be approximately one-tenth of the acids found or about 3%. We made the refractive index of these separated acids and are comparing them with that of a well-known sulphonated oil, namely, Monopole Oil made by Jacques Wolf & Co. This figure comes to 1.467. Furthermore, the refractive indices of practically all fats lie within the range of 1.42 to 1.49. We have never found the iodine figure of separated acids from sulphonated oil anything like as low as found here. They do not run the same as the oils from which they were made, but are probably not generally more than 10 or 15 points difference. The neutralization values of these separated acids are also very low for natural fat. There seems to be a certain amount of volatile matter in these preparations that goes off when saponification is effected. We made a physical examination of the separated acids and they have more of a resinous character than oily. It is our opinion that these oils are not sulphonated oils in whole or any substantial part. We think the figures shown herewith prove this contention. If you have any reason to believe that our investigation should go further in this matter, unless additional work should be study, we would need more of the oils, as we only have about a half inch of each left in the small bottles which you sent. We are keeping this for identification, Very truly yours, SAMUEL P. SADTLER & SON (INC.)., As to whether the samples analyzed contained animal or vegetable oils the witness testified on his direct examination: Q. Did you determine from your examination whether the merchandise in question contained any animal or vegetable oil?-A. From my examination I would state that it does not contain any appreciable amount of animal or vegetable oil. Q. Just what do you mean by any appreciable amount, in percentage terms?— A. Any that could be detected. Q. Did your analysis or test proceed to such an extent to say that had it been there you would have been able to detect it?—A. Yes; if there had been any considerable amount I would have been able to detect it. Q. And by considerable amount what do you mean in terms of percentage?— A. I do not know that I would say in percentage-enough to give it any character or be noticeable, I would say. Q. Did you determine whether it was sulphonated oil of any kind?-A. It is not a sulphonated oil. (P. 84.) We are asked to believe that chemistry is an exact science, and yet if it be assumed that these two witnesses analyzed identical samples we are confronted with reports which can not be reconciled. One found 13 per cent of saponifiable animal or vegetable oil, while the other found not even a trace of such oils. This is most significant when it is remembered that if either or both of such oils be present in appreciable proportions, as are claimed to have been found by the Government chemist, the classification of the collector must be sustained, while on the other hand if the report of the witness Sadtler truly represents the components of the mixture in issue, such classification must be held to have been erroneously made. In G. A. 6821 (T. D. 29312) we took occasion to say: A number of chemists, several of them ranking high as professional men, have been called to testify in favor of and against the protestants' claim; and, as is usual in most cases where professional expert testimony is employed, there is irreconcilable conflict. By recognized chemical authorities one of the tests laid down for cutch is the presence of phloroglucol. This is generally described as a very delicate test. It is usually made by placing a splinter of pine wood in a solution of the substance to be tested, allowing it to remain about a minute, then dipping the wood into strong hydrochloric acid and allowing the wood to stand. If phloroglucol be present, it will be disclosed by a pink or violet coloring on the stick. Strange as it may seem, each of the chemists called by the protestants, who made the test for phloroglucol either by this or other methods, found evidence of its presence, while with equal unanimity those called by the Government, and who made similar tests, found no evidence of phloroglucol and, based upon that fact alone, were equally united in stating that the article in question was not cutch. In addition to the testimony of the two chemists above quoted we have that of the witness Bye, another chemist, and Herbst, both of whom are shown to be connected with the firm of Schliemann & Co., the ultimate consignees of this so-called sludge in issue. We also have the testimony of Mr. Watson, who is described as a lubricating engineer, production engineer, and sales manager for E. F. Houghton & Co., purchasers of the involved merchandise, and that of Doctor Sunderland, chief chemist for Houghton & Co. Mr. Bye stated he had visited the factory where this merchandise was manufactured and observed the method of its production, and that he is familiar with its uses. On his direct examination, when asked to testify what the merchandise was, he said, in addition to the quotation given on page 86 of this decision, that it contained neither animal nor vegetable oil; and as to its uses he said it could not be used alone in dyeing, tanning, or finishing textiles, but that it could be so used as raw material mixed with other oils. It was developed on cross-examination, however, that this witness had not seen the kind of merchandise from which he claims this to be produced during the six years preceding his testimony, and that this particular merchandise had not been analyzed by him or under his supervision and that he did not know enough about the textile trade to state whether this oil could be used in textile work when mixed with other oils. Altogether we think the testimony of this witness of little value on the vital points of the issue presented. The witness Watson is shown to be connected with E. F. Houghton & Co., who purchased from Schliemann & Co., this so-called sludge in the United States. Mr. Watson testifies that his company has made tests "to ascertain the exact make up of this sludge," but it appears that such tests were made in his company's laboratory under his supervision, rather than by him. It is not clear whether Exhibit 2, the sample taken from the importation by the witness Ross, was the one "tested" in the Houghton Co. laboratory and mentioned by Mr. Watson, but, whether it was or not, it is of no importance in the absence of proof of the actual tests made and the results thereof. Mr. Watson did not pretend to say what these tests were, or even whether they were analyses, or merely physical tests. Such tests with the hope of giving them probative value should have been given in detail and proved by the person who made them in order that he might have been subjected to crossexamination, both as to his method of testing and the results actually found. Doctor Sunderland testified that he had analyzed what he was told was a portion of Exhibit 1 and found that it did not contain either saponifiable animal or vegetable oil. It developed, however, that that which he did analyze was later claimed to have been taken from barrel 85 of one of the involved importations. He could not produce any part of the substance that he did analyze, nor was the substance that he did analyze identified as being taken from either of these importations. It further developed that such analysis as he did make was made 10 months before his testimony was given, and that in testifying he depended entirely on his memory for the results of his analysis. No report or other record was presented showing the extent of the analysis made, or the character of his tests. As to the purpose of his analysis Doctor Sunderland testified Q. Now, Mr. Sunderland, when this was given to you, this sample, it was given to you in the ordinary course of business for the purpose of determining the component materials in that product for the purpose of being able to pass on the merchandise whether it was in accordance with the specifications? A. Yes, sir. Q. In other words, it was not given to you to determine for the purpose of this trial, was it?—A. The analysis was given for the purpose of the trial; yes. Q. You knew, did you, at the time you made this analysis in January, of course? A. Yes. Q. It was done because you expected this trial to proceed?-A. No; but we had trouble with the entry of this merchandise here in Philadelphia, so we took every precaution to analyze it thoroughly. Q. And it was for that purpose it was given to you to analyze?-A. It was not specially for the trial, but was specifically that we wanted to know whether, what we were getting. Q. Mr. Sunderland, do you analyze every bit of this merchandise that your concern imports?—A. Very nearly; yes. Q. And was the analysis in question done because of that usual practice?— A. Usual practice; yes. Q. And it was also because this trial was anticipated?-A. No; not a trial, but we knew the matter was coming up later on; yes. (Pp. 60, 61.) The last witness to testify was Doctor Sadtler, a consulting analytical chemist. His report is above set out in full. The details of Doctor Sadtler's analysis given in his oral testimony were that he had found Exhibit 1 to consist of 60 per cent of unsaponifiable oil, or mineral oil, and 36 per cent of saponifiable oil and 3.50 per cent of water, while Doctor Sunderland claimed to have found 69 per cent of unsaponifiable matter, 16 per cent of moisture, and 15 per cent of sodium salt of mineral-oil base, and Doctor McSorley found approximately 88 per cent of unsaponifiable oil and 13 per cent of saponifiable vegetable oil. All of the testimony as to the composition and use of so-called sludge, except that of Doctors McSorley and Sadtler, was given by the witnesses Bye, Watson, Sunderland, and Herbst, each of whom was connected either with the Schliemann Co. or the E. F. Houghton Co., one the ultimate consignee, and the other the purchasers of the involved merchandise, and consequently both interested in the outcome of this issue. Neither of these witnesses was shown to have either analyzed this merchandise or to have seen it produced, and their testimony is therefore not entitled to any weight in fixing its classification, inasmuch as its composition can only be determined by analysis. It follows, therefore, that the issue presented must be determined on the evidence of the witnesses McSorley and Sadtler. The appraiser based his advisory classification on the report of Doctor McSorley, and the collector based his classification and assessment of duty on the appraiser's report. We begin the consideration of the issue with a presumption in favor of the regularity of the collector's action. United States v. Schering (123 Fed. 65); United States v. Rosenwald (67 Fed. 323); Arthur v. Unkart (96 U. S. 122); Muser v. Magone (155 U. S. 240); Horsfield v. United States (1 Ct. Cust. Appls. 138; T. D. 31186); Benjamin Iron & Steel Co. v. United States |