DISSENTING OPINION.
Hunt, Associate Judge,dissenting: I am constrained to dissent. The question involved in the case was purely one of fact, upon which there was a serious and direct conflict of evidence. To resolve this conflict was peculiarly the province of the board, sitting as triers of fact. They saw the witnesses, observed their manner, heard their 'statements, and thereafter concluded that the weight of evidence was in favor of the view that the olive oils involved were edible.
■After a careful reading of the entire testimony, including that of Drs. Wiley and Doolittle, produced by the Government, my opinion *271is that the decision of the board is supported by evidence which is positive, substantial, and sufficient. For instance, Dr. Doolittle, a chemist of skill and experience and who made analysis of the oils, said in part:
* * * The chemical examination was for the purpose of determining whether or not they were olive oil. I also submitted them to certain physical tests, smell, taste, appearance, color, etc., to determine whether they were fit for edible purposes. Food products are often submitted to me for examination. Among other things I examine olive oil from time to time to determine its quality and character. Speaking of the free fatty acids, free acids as oleic, that is a purely chemical analysis. The determination of free fatty acids is done chemically. It is a comparatively simple process. You simply take a given amount of the oil and dissolve it in neutral alcohol and titrate that against a standard solution of alkali. Alkali is to neutralize the amount of acid in that and from the amount of alkali it takes it gives the amount of acid there is present in the oil. Frorh that I determine the free fatty acid there is in the oil or in any other substance. The process I have just given is one in common use for the determination of free fatty acids in olive oil. I made a determination of certain constants in the oil tp inform me whether or not it was pure olive oil. We determined the specific gravity in most instances where we had plenty of material, the index of refraction, the iodine number, and then we tested them all for the common oils that would be used for adulterating olive oil, such as cotton seed, sesame, and peanut. These oils were pure olive oils. They were all of them found to be clear and of good color — that is, the ordinary color of olive oil ordinarily used for food consumption.
I submitted every one of these to a full examination, both chemical and what you might call physical examination, and went over them very carefully and wrote out my conclusion on each of the oils, and these conclusions are in this report signed by me. In my opinion, they are all edible oils, such as are ordinarily used for consumption, as having come in my experience — such as have come under my observation, imported oils in the market.
The credibility and weight of this testimony were for the board to pass upon. Having believed it, their conclusion ought not to be disturbed, unless in weighing the evidence they proceeded upon some erroneous principle. And whether they did or not is, to my mind, the one important point in the case. I agree thoroughly with my learned associates in their expression to the effect that fear of possible 'effects upon the reputations of experts for the Government can have no proper place in weighing evidence,-and if it appeared to me that the board was directed to its conclusion because of the influence of such fears, I should concur in reversal of the case. But the opinion of the board puts its decision upon grounds indepenpent of such moving causes by stating its finding before it proceeds to invoke the erroneous argument, declaring its view ‘ ‘ especially * * * justifiable.” Moreover, in its conclusion it reiterates the opinion that any finding other than that which it has made would not be justified by the record.
The case stands, therefore, as I look at it, as one where the presumptions in favor of the finding of the lower tribunal are strong enough to obtain and to require affirmance. Manson v. Williams (213 U. S., 453).