KHVPF Insight

Weeks ago, an Indiana Superior Court Judge, in Quintana v. Fort Wayne Plan Commission, addressed an important question of culinary interpretation: are tacos and burritos sandwiches? A zoning ordinance for a particular commercial development did not permit fast-food restaurants, with an exception for restaurants selling sandwiches. The Famous Taco restaurant, desirous of opening a store in the development, argued that tacos and burritos are sandwiches. The trial court agreed that “tacos and burritos are Mexican-style sandwiches” and—in what is arguably dicta—opined that restaurants serving “Greek gyros, Indian naan wraps, or Vietnamese banh mi” would also be permitted under the sandwich-shop exception. Sadly, no analysis was provided, apart from explaining that “sandwich” should not be limited to American-style sandwiches.

But was the court correct? The ruling that the zoning regulation did not apply only to “American” sandwiches is arguably consistent with what Bryan Garner and the late Justice Antonin Scalia call the “omitted-case” canon – that is, you should not add words to a text. The exemption was for “sandwiches” without limitation, and so the text cannot be read to apply to only “American” sandwiches. True enough, but that begs the question: American, Mexican, or Greek, how does one define a sandwich? In 2006, the Massachusetts Superior Court, in White City Shopping Center v. PR Restaurants, addressed the same question but came out the other way, holding that tacos and burritos are not sandwiches. The Massachusetts court appealed to the “ordinary meaning of the word,” and cited a dictionary definition of “sandwich” as “two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them.”

That court reasoned that tacos and burritos do not count. It did not deny that a tortilla was bread (nor should it have, as a tortilla is merely an unleavened flatbread) but held that because burritos and tacos are “typically made with a single tortilla and stuffed with a choice filling of meat, rice, and beans,” they are not sandwiches. In other words, the Massachusetts court reasoned that the plain understanding of a “sandwich” requires two pieces of bread, not one.

This “plain meaning” canon is a well-established tool of contractual and statutory interpretation. But the Massachusetts court’s analysis was, respectfully, lacking.

Every reader is familiar with the concept of an open-faced sandwich, which Merriam-Webster defines as “a piece of bread that is covered with meat, cheese, etc.; a sandwich made with no bread on top.”

The dictionary thus explicitly defines an open-faced sandwich as a sandwich, despite having one piece of bread. (One might also collaterally attack the “sandwich as two slices of bread” analysis by reference to the club sandwich, which sports a full three slices of bread.) A plain-meaning analysis also suggests that the food product variously known as a hoagie, grinder, or submarine is—in fact—a sandwich despite it consisting of a single piece of hinged bread that (like a taco) is filled with toppings.

These interpretations give way to other puzzles, however. If a single piece of hinged bread containing meat is a sandwich, is a hot dog a sandwich? Today, most people would probably not envision a hot dog when imagining a sandwich. Yet another canon of interpretation—the “fixed meaning” canon—states that words have the meaning assigned when the term was adopted. And a brief look into history reveals that what we call the “hot dog” was known at the time of its adoption as a “frankfurter sandwich.” This argument should, at a minimum, appeal to any judges who follow the doctrine of originalism. If a hot dog was a sandwich in 1880, it’s a sandwich today. Case closed, right? A burrito and hot dog are both single-pieced bread products, folded to contain a meat filling. Sandwiches.

Maybe not. Another canon of construction seeks to avoid absurd results. For instance, the plain meaning of “soup” is a liquid base containing grain, vegetable, or meat. Soup does not have to be hot (e.g., vichyssoise or gazpacho) and a soup’s liquid can be dairy-based (e.g., clam chowder or cream of mushroom). Therefore, the term “soup” should be interpreted to include a bowl of cereal: that is, a food product consisting of a liquid base, in which floats a grain product. It’s even eaten with a spoon, just like soup. Yet that seems absurd, and not likely what any reasonable legislator or contract drafter would think about in a provision defining “soup.” That said, while cereal-as-soup may be absurd, the case law above suggests that burrito-as-sandwich is well within the realm of possibility.

Ultimately, this is an issue that will have to be resolved by a higher court. Will it? One hundred and thirty-one years ago, in Nix v. Hedden, the Supreme Court of the United States weighed in on a similar, but distinct question: is a tomato a fruit? It unanimously held that “botanically speaking, tomatoes are the fruit of a vine,” but in the “common language of the people” tomatoes are vegetables. Thus, the Supreme Court held that tomatoes were subject to a tariff applicable to “vegetables.” But the makeup of the Supreme Court has changed radically since 1893, so the precedential value of Nix is questionable. Until a case ripe for certiorari review comes along, the debate will have to continue.