U.S.

Supreme Court

Nix v. Hedden, 149 U.S. 304 (1893)

Nix v. Hedden

No. 137

Submitted April 24, 1893

Decided May 10, 1893

149 U.S. 304

ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE SOUTHERN DISTRICT OF NEW YORK

Syllabus

The court takes judicial notice of the ordinary meaning of all words in our tongue, and dictionaries are admitted not as
evidence, but only as aids to the memory and understanding of the court.

Tomatoes are "vegetables," and not "fruit," within the meaning of the Tariff Act of March 3, 1883, c. 121.

Page 149 U. S. 305

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, c. 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 percentum 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 thirty 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 today 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."
Tomato fruit or vegetable
Page 149 U. S. 306

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. 39 F. 109. The plaintiffs duly excepted to the instruction, and sued out this
writ of error.

MR. 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 today 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

Page 149 U. S. 307

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. Brown
v. Piper, 91 U. S. 37,91 U. S. 42; Jones v. United States, 137 U. S. 202, 137 U. S. 216; Nelson v. Cushing, 2 Cush. 519,
532-533; Page v. Fawcet, 1 Leon. 242; Taylor on Evidence (8th ed.), 16, 21.

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."

Robertson v. Salomon, 130 U. S. 412, 130 U. S. 414.

Tomato fruit or vegetable
Judgment affirmed.

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Nix v. Hedden

Nix v. Hedden, 149 U.S. 304 (1893),[1] was a decision by the Supreme Court of the United States that, under U.S.
customs regulations, the tomato should be classified as a vegetable rather than a fruit. The Court's unanimous opinion
held that the Tariff Act of 1883 used the ordinary meaning of the words "fruit" and "vegetable", instead of the technical
botanical meaning.

Contents

1 Background of the case

2 The Court's decision

3 Subsequent jurisprudence

4 See also

5 Notes

6 References

7 External links

Background of the case

The Tariff Act of March 3, 1883 required a tax to be paid on imported vegetables, but not fruit. The case was filed as an
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. Botanically, a tomato is a fruit because it is a seed-bearing structure
growing from the flowering part of a plant.

At the trial, the plaintiffs' 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 in
the business of selling fruit and vegetables for 30 years, and asked them, after hearing these definitions, to say whether
these words had "any special meaning intrade or commerce, different from those read".

During testimony, one witness testified that in regard to the dictionary definition:

[the dictionary] 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 today
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'

Another witness testified that "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."[2]

Both the plaintiffs' counsel and the defendant's counsel made use of the dictionaries. The plaintiffs' counsel read in
evidence from the same dictionaries the definitions of the word tomato, while the defendant's counsel then read in
evidence from Webster's Dictionary the definitions of the words pea, eggplant, cucumber, squash, and pepper.

Tomato fruit or vegetable

Countering this, the plaintiff then read in evidence from Webster's and Worcester's dictionaries the definitions
of potato, turnip, parsnip, cauliflower, cabbage, carrot and bean.

The Court's decision[edit]

Botanically, a tomato is a fruit. However, in common parlance it is seen as a vegetable; hence the United States Supreme
Court ruled that a tomato is a vegetable for the purposes of the customs regulations.

The court unanimously decided in favor of the respondent and found that the tomato should be classified under the
customs regulations as a vegetable, based on the ways in which it is used, and the popular perception to this end.
Justice Horace Gray, writing the opinion for the Court, stated that:

The passages cited from the dictionaries define the word 'fruit' as the seed of plants, or that part of plants 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.

Justice Gray, citing several Supreme Court cases (Brown v. Piper, 91 U.S. 37, 42, and Jones v. U.S., 137 U.S. 202, 216)
stated that when words have acquired no special meaning in trade or commerce, the ordinary meaning must be used by
the court. In this case dictionaries cannot be admitted as evidence, but only as aids to the memory and understanding of
the court. Gray acknowledged thatbotanically, tomatoes are classified as a "fruit of the vine"; nevertheless, they are
seen as vegetables because they were usually eaten as a main course instead of being eaten as a dessert. In making his
decision, Justice Gray mentioned another case where it had been claimed that beans were seeds Justice Bradley,
in Robertson v. Salomon, 130 U.S. 412, 414, similarly found that though a bean is botanically a seed, in common
parlance a bean is seen as a vegetable. While on the subject, Gray clarified the status of the cucumber, squash, pea,
and bean.

Subsequent jurisprudence[edit]

Nix has been cited in three Supreme Court decisions as a precedent for court interpretation of common meanings,
especially dictionary definitions. (Sonn v. Maggone, 159 U.S.417 (1895); Saltonstall v. Wiebusch &
Hilger, 156 U.S. 601 (1895); and Cadwalder v. Zeh, 151 U.S. 171 (1894)). Additionally, in JSG Trading Corp. v. Tray-Wrap,
Inc., 917 F.2d 75 (2d Cir. 1990), a case unrelated to Nix aside from the shared focus on tomatoes, a judge wrote the
following paragraph citing the case:

In common parlance tomatoes are vegetables, as the Supreme Court observed long ago [see Nix v. Hedden 149 U.S. 304,
307, 13 S.Ct. 881, 882, 37 L.Ed. 745 (1893)], although botanically speaking they are actually a fruit. [26 Encyclopedia
Americana 832 (Int'l. ed. 1981)]. Regardless of classification, people have been enjoying tomatoes for centuries;
even Mr. Pickwick, as Dickens relates, ate his chops in "tomata" sauce.

In 2005, supporters in the New Jersey legislature cited Nix as a basis for a bill designating the tomato as the official state
vegetable.[3]

Tomato fruit or vegetable