Flashback Photo: Selling Tomatoes in the Market, 1909

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Lewis Hine took this photograph of a boy selling tomatoes in Boston at 11 pm in October 1909. The picture was intended to illustrate the evils of child labor. It was one of many Hines photos that helped pass laws to prevent children doing work that robbed them of their childhood.

We chose this picture to illustrate something else: the 1893 U.S. Supreme Court decision, Nix v. Hedden, that tomatoes are a vegetable, not a fruit.

Technically, a tomato is a fruit because it bears seeds and grows from the flowering part of the plant.

But a Port of New York customs collector didn’t see it that way. Under the Tariff Act of March 3, 1883, he was supposed to collect taxes on vegetables, but not fruit. He decided tomatoes were vegetables.

Importers John Nix, John W. Nix, George W. Nix, and Frank W. Nix protested, arguing tomatoes are a fruit. They brought a suit against the port collector to recover the back duties he had collected under protest.

The high court ruled on May 10, 1893, that a tomato is a vegetable according to the ‘common language of the people.’

Justice Horace Gray, a Boston Brahmin, wrote the opinion in the unanimous decision. He argued that the court must use the ordinary meaning of a word if it has no special meaning in commerce. He also wrote that tomatoes are eaten as a main course, not as a dessert, and were therefore vegetables.

While he was at it, Judge Gray clarified the status of the cucumber, squash, pea, and bean – all vegetables.