Tomatoes: Fruits, Vegetables, or Both?

From today’s Kirstaeng v. John Wiley & Sons, Inc.; pay particular attention to the last sentence:

We cannot, however, give the Quality King statement the legal weight for which Wiley argues. The language “lawfully made under this title” was not at issue in Qual­ity King; the point before us now was not then fully argued; we did not canvas the considerations we have here set forth; we there said nothing to suggest that the example assumes a “first sale”; and we there hedged our statement with the word “presumably.” Most importantly, the statement is pure dictum. It is dictum contained in a rebuttal to a counterargument. And it is unnecessary dictum even in that respect. Is the Court having once written dicta calling a tomato a vegetable bound to deny that it is a fruit forever after?

Say what you will about dicta generally, but calling a tomato a vegetable even in binding holding wouldn’t stop the Court from calling a tomato a fruit. Rather, the key is to recognize that a tomato can be a vegetable for some purposes and a fruit for others. From Nix v. Hedden (1893), which strikes me as eminently sensible:

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 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.

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 with 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, 414.

So there you have it: The Court held that tomatoes are a vegetable rather than a fruit for purposes of the Tariff Act, because it concluded that the Act used the terms in their culinary sense and not their botanical sense. But if a future statute uses the word “fruit” in a botanical sense, the Court won’t be precluded from labeling a tomato as a fruit. The same would be true if the statute uses the word “fruit” in a specialized commercial sense that has been understood in trade as encompassing tomatoes.

The word “fruit” has multiple meanings in English, as do so many other words. And it is a recognition of this plurality of meanings — and not a distinction between dictum and holding — that would let the Court treat the tomato as a fruit in a proper future case.