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Forbidden fruit

05/10/06 12:00AM By Vic Henningsen
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(HOST)The pumpkin has just been designated New Hampshire's state fruit, and that's reminded commentator Vic Henningsen of the time when the United States Supreme Court did a little cultivation in the vegetable patch.

(HENNINGSEN) Few of us are familiar with the case of Nix v. Hedden, decided on this date back in 1893, but we should be.
It concerns the humble tomato.

By nature and by definition, tomatoes are fruit. But, by usage, they're commonly regarded as vegetables. Like many things
in life, the technical and the everyday understanding of tomatoes co-existed happily for years before the highest court in the land intervened. Not surprisingly, it involved money.

The Nix brothers were grocers who sued a government customs official in federal district court because their imported tomatoes were taxed as vegetables instead of being admitted as fruit,
which came in free.

Arguing that tomatoes were fruit, the Nixes cited a variety of dictionaries, each of which defined fruit as the edible part of
a plant consisting of the seeds and pulpy surrounding tissues. Like...a tomato. Expert witnesses testified that the meanings of the words "fruit" and "vegetable" in trade and commerce did not differ from the dictionary definitions.

The district court found for the Nix brothers. Tomatoes are fruit. Why quarrel with Webster's Dictionary?

Why not quarrel with Webster said the Supreme Court of the United States, as it overruled the lower court. Tomatoes are vegetables!

Writing for the majority, Justice Horace Gray stated that dictionaries are not evidence, but function only as aids to memory and understanding. And sometimes the ordinary meaning of words differs from their dictionary definition. Yes, he admitted, "botani-
cally speaking, tomatoes are the fruit of a vine." But in the common language and common practice of the people, he continued, they're vegetables: they're grown with vegetables and are "usually served at dinner in, with, or after...the principal part of the repast, and not, like fruits generally, as dessert." Popular understanding, in other words, overruled scientific truth.

Justice Gray went on to note the troubling similarity between this case and a recent attempt to beat the import tax by convincing the Supreme Court that beans weren't vegetables, but seeds. "Beyond common knowledge" said the exasperated justices, "very little evidence is necessary," apparently attempting to nip this disturbing trend of litigation in the bud.

Although this is one of the court's odder decisions, it shows the lengths people will go to when money is involved. And it reflects the truth of Chief Justice Charles Evans Hughes's famous remark: "The Constitution is what the Supreme Court says it is." Apparently, so is the tomato.

But the controversy continues. In 1982, Ronald Reagan proclaimed tomato ketchup a vegetable. Under Governor Bill Clinton, Arkansas decided to have it both ways in 1987, declaring the tomato its state vegetable and state fruit. In 2003 Tennessee boldly designated the tomato its state fruit. Ohio may soon follow.

Vermont can reverse this trend: in 1999 - on May 10th, as it happens - the legislature declared the apple our state fruit.
There's still an opening for state vegetable.

Vic Henningsen is a teacher and historian.
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