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
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:
U.S. Supreme Court
NIX v. HEDDEN, 149 U.S. 304 (1893)
149 U.S. 304
NIX et al.
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.
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
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,
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
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
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.