DISSENTING OPINION
McClelland, Presiding Judge:I regret that I am unable to concur in either the views expressed by my colleagues or the conclusion reached by them. The record shows that two witnesses were called to testify on the trial of the issue, one for the plaintiff and one for the Government. David B. Moss, called as a witness on behalf of the plaintiff, stated that he was in the employ of the plaintiff company as a chemist; that “all the material that comes in, and all the material that goes out” were tested by him; that with the use of an implement known as a trier he took a representative sample from each of the nine drums involved in the shipment; that the nine samples were combined into one composite sample and that he subjected such sample to the titre test to determine its hardness. After detailing the method of making the test he stated that he found the titre point of the sample to be 41.05 degrees centigrade. He also stated that the foregoing method of obtaining a sample was the “official method adopted by the trade,” and that the titre test was a standard test. The general “uses” of the trade, he said, regarded any substance such as that in issue having a titre point of 40 degrees or over as a tallow, while any such substance having a titre point of below 40 degrees would be a fat.
Charles E. Augner, called as a witness on behalf of the defendant, stated that he was a chemist in the customs laboratory located at the port of New York and had run a titre test exactly the same as that testified to by Mr. Moss on a sample of the shipment bearing the number C9983 furnished him through customs channels, and arrived at a titre point of 38.45. He corroborated the testimony given by Mr. *19Moss to tbe effect that 40 degrees centigrade is considered to be the line of demarcation between animal fats and tallow. Questioned on cross-examination, he was unable to give any information as to the method by which the sample he examined had been drawn from the importation, and frankly admitted that in order to obtain accurate results in the titre test it was essential that a sample representative of the entire mass should be taken from each drum.
The most that can be said of the results accomplished on cross-examination is the eliciting from the witness of the statement that he was a chemist and not a sampler and that he therefore had no knowledge of how the sample he examined had been obtained.
The purpose of such cross-examination is not made clear in the record, but it is clearly summed up in the following language found in the brief of plaintiff’s counsel:
On cross-examination, however, he testified that he received the sample “from our receiving department.” He did not know what portion of the shipment it represented. He did not know how the sample was drawn. He did not know whether it was taken from the top or bottom of the drums. He did not know whether it was taken from every drum. He admitted that the same titre measurement would not result from a sample drawn from the top of a drum as from the bottom of a drum (R. 13).
He also testified as follows (R. 14):
X Q. So that if the sample that you analyzed was not representative of the entire drum it isn’t an accurate sample for the purpose of determining the titre test? — A. That is right.
and counsel argues in bis brief tbat on the record made the prima Jade case made by the plaintiff was not rebutted by the Government.
I am at a loss to know on what actual basis counsel makes that statement, except it be that he relies on the fact that there is no affirmative proof in the record as to the detailed method by which the sample analyzed by Government witness Augner was taken. In my view there was no need for such affirmative proof. The Government employee who took the sample acted as a representative of the appraiser in so doing. The appraiser was required by law not only to appraise the merchandise but to describe it in order that the collector might determine the dutiable classification thereof. In order so to do it was necessary that he know of what the merchandise consisted, which in this case was determinable only by the test made. So far as the record shows there is nothing to justify the inference that what the appraiser did to that end was not fully and in every detail what the statute required. Certain it is that there was no attempt on the part of the plaintiff to show that the appraiser had not performed his full duty, and in the absence of proof to that end it must be assumed that he acted regularly.
*20We start with the presumption of law that all that was required of the appraiser as to the examination and appraisement of this merchandise was regularly performed and it cannot therefore be inferred that because there was no testimony on the part of the Government to support the regularity of the appraiser’s action in taking the sample he therefore did not perform his full duty. On the contrary, there is an abundance of authority that the law presumes, in the absence of clear evidence to the contrary, that public officers have properly discharged their official duties. Arthur v. Unkart, 96 U. S. 118; Coe v. Errol, 116 id. 517; Muser v. Magone, 155 id. 240.
As the record stands before us, therefore, the presumption that the appraiser’s representative properly took the sample tested by the Government chemist has not been rebutted. Plaintiff has shown that a competent chemist made a titre test on a representative sample of the merchandise and arrived at a result of 41.05 degrees centigrade, while the evidence offered on behalf of the defendant shows that an equally competent chemist made the same test on another representative sample and arrived at a result of 38.45 degrees centigrade. On such a record it should be held that plaintiff has not shown by a preponderance of competent evidence that the classification made by the collector was erroneous and that that sought by it was correct, as it was bound to do if it hoped to succeed.
The protest should therefore be overruled and the decision of the collector affirmed. Judgment should issue accordingly.