Tomatoes: Fruit or Vegetable? This is a
subject that comes up every so often and I've heard it for years. If
nothing else it's fun to kick around.
Botanically the Tomato is a fruit. In 1893 Jon Nix et al were fruit
importers (or so they thought). They sued New York customs collector
Edward Hedden to recover duties "paid under protest" on the import of
tomatoes from the West Indies. At the time, vegetables required a 10
percent tariff. Fruits were imported duty-free. In other words Nix said
tomatoes were fruit (no duty) and Hedden said they're vegetables (pay me
big boy)!
So, they went to court, the Supreme Court. After arguments were
presented Justice Gray ruled that because tomatoes where known as and
used as vegetables, that's what they were...vegetables! Nix got Nixed!
Here's the battle:
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U.S. Supreme Court
NIX v. HEDDEN, 149 U.S. 304 (1893)
149 U.S. 304
NIX et al.
v.
HEDDEN, Collector.
No. 137.
May 10, 1893
At law. Action by John Nix, John W. Nix,
George W. Nix, and Frank W. Nix against Edward L. Hedden, collector of
the port of New York, to recover back duties paid under protest.
Judgment on verdict directed for defendant. 39 Fed. Rep. 109. Plaintiffs
bring error. Affirmed.
Statement by Mr. Justice GRAY: This was an action brought February 4,
1887, against the collector of the port of New York to recover back
duties paid under protest on tomatoes imported by the plaintiff from the
West Indies in the spring of 1886, which the collector assessed under
'Schedule G.-Provisions,' of the tariff act of March 3, 1883, (chapter
121,) imposing a duty on 'vegetables in their natural state, or in salt
or brine, not specially enumerated or provided for in this act, ten per
centum ad valorem;' and which the plaintiffs contended came within the
clause in the free list of the same act, 'Fruits, green, ripe, or dried,
not specially enumerated or provided for in this act.' 22 Stat. 504,
519.
At the trial the plaintiff's counsel, after reading in evidence
definitions of the words 'fruit' and 'vegetables' from Webster's
Dictionary, Worcester's Dictionary, and the Imperial Dictionary, called
two witnesses, who had been for 30 years in the business of selling
fruit and vegetables, and asked them, after hearing these definitions,
to say whether these words had 'any special meaning in trade or
commerce, different from those read.'
One of the witnesses answered as follows: 'Well, it does not classify
all things there, but they are correct as far as they go. It does not
take all kinds of fruit or vegetables; it takes a portion of them. I
think the words 'fruit' and 'vegetable' have the same meaning in trade
to-day that they had on March 1, 1883. I understand that the term
'fruit' is applied in trade only to such plants or parts of plants as
contain the seeds. There are more vegetables than those in the
enumeration given in Webster's Dictionary under the term 'vegetable,' as
'cabbage, cauliflower, turnips, potatoes, peas, beans, and the like,'
probably covered by the words 'and the like."
The other witness testified: 'I don't think the term 'fruit' or the term
'vegetables' had, in March, 1883, and prior thereto, any special meaning
in trade and commerce in this country different from that which I have
read here from the dictionaries.'
The plaintiff's counsel then read in evidence from the same dictionaries
the definitions of the word 'tomato.' The defendant's counsel then read
in evidence from Webster's Dictionary the definitions of the words
'pea,' 'egg plant,' 'cucumber,' 'squash,' and 'pepper.'
The plaintiff then read in evidence from Webster's and Worcester's
dictionaries the definitions of 'potato,' 'turnip,' 'parsnip,'
'cauliflower,' 'cabbage,' 'carrot,' and 'bean.'
No other evidence was offered by either party. The court, upon the
defendant's motion, directed a verdict for him, which was returned, and
judgment rendered thereon. The plaintiffs duly excepted to the
instruction, and sued out this writ of error.
Edwin B. Smith, for plaintiffs in error.
Justice GRAY, after stating the facts in the foregoing language,
delivered the opinion of the court.
The single question in this case is whether tomatoes, considered as
provisions, are to be classed as 'vegetables' or as 'fruit,' within the
meaning of the tariff act of 1883.
The only witnesses called at the trial testified that neither
'vegetables' nor 'fruit' had any special meaning in trade or commerce
different from that given in the dictionaries, and that they had the
same meaning in trade to-day that they had in March, 1883.
The passages cited from the dictionaries define the word 'fruit' as the
seed of plaints, or that part of plaints which contains the seed, and
especially the juicy, pulpy products of certain plants, covering and
containing the seed. These definitions have no tendency to show that
tomatoes are 'fruit,' as distinguished from 'vegetables,' in common
speech, or within the meaning of the tariff act.
There being no evidence that the words 'fruit' and 'vegetables' have
acquired any special meaning in trade or commerce, they must receive
their ordinary meaning. Of that meaning the court is bound to take
judicial notice, as it does in regard to all words in our own tongue;
and upon such a question dictionaries are admitted, not as evidence, but
only as aids to the memory and understanding of the court.
Botanically speaking, tomatoes are the fruit of a vine, just as are
cucumbers, squashes, beans, and peas. But in the common language of the
people, whether sellers or consumers of provisions, all these are
vegetables which are grown in kitchen gardens, and which, whether eaten
cooked or raw, are, like potatoes, carrots, parsnips, turnips, beets,
cauliflower, cabbage, celery, and lettuce, usually served at dinner in,
with, or after the soup, fish, or meats which constitute the principal
part of the repast, and not, like fruits generally, as dessert.
The attempt to class tomatoes as fruit is not unlike a recent attempt to
class beans as seeds, of which Mr. Justice Bradley, speaking for this
court, said: 'We do not see why they should be classified as seeds, any
more than walnuts should be so classified. Both are seeds, in the
language of botany or natural history, but not in commerce nor in common
parlance. On the other hand in speaking generally of provisions, beans
may well be included under the term 'vegetables.' As an article of food
on our tables, whether baked or boiled, or forming the basis of soup,
they are used as a vegetable, as well when ripe as when green. This is
the principal use to which they are put. Beyond the common knowledge
which we have on this subject, very little evidence is necessary, or can
be produced.
Judgment affirmed.
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