In this case, we are asked to decide whether the Excessive Fines Clause of the Eighth Amendment applies to forfeitures of property under 21 U. S. C. §§ 881(a)(4) and (a)(7).We hold that it does and therefore remand the case for consideration of the question whether the forfeiture at issue here was excessive.
On August 2, 1990, petitioner Richard Lyle Austin was indicted on four counts of violating South Dakota's drug laws. Austin ultimately pleaded guilty to one count of possessing cocaine with intent to distribute and was sentenced by the state court to seven years' imprisonment. On September 7, the United States filed an in rem action in the United States District Court for the District of South Dakota seeking forfeiture of Austin's mobile home and auto body shop under 21
On February 4, 1991, the United States made a motion, supported by an affidavit from Sioux Falls Police Officer Donald Satterlee, for summary judgment. According to Satterlee's affidavit, Austin met Keith Engebretson at Austin's body shop on June 13, 1990, and agreed to sell cocaine to Engebretson. Austin left the shop, went to his mobile home, and returned to the shop with two grams of cocaine which he sold to Engebretson. State authorities executed a search warrant on the body shop and mobile home the following day. They discovered small amounts of marijuana and cocaine, a .22 caliber revolver, drug paraphernalia, and approximately $4,700 in cash. App. 13. In opposing summary judgment, Austin argued that forfeiture of the properties would violate the Eighth Amendment.
The United States Court of Appeals for the Eighth Circuit "reluctantly agree[d] with the government" and affirmed.
We granted certiorari, 506 U.S. 1074 (1993), to resolve an apparent conflict with the Court of Appeals for the Second Circuit over the applicability of the Eighth Amendment to in rem civil forfeitures. See United States v. Certain Real Property, 954 F.2d 29, 35, 38-39, cert. denied sub nom. Levin v. United States, 506 U.S. 815 (1992).
Austin contends that the Eighth Amendment's Excessive Fines Clause applies to in rem civil forfeiture proceedings. See Brief for Petitioner 10, 19, 23. We have had occasion to consider this Clause only once before. In Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257 (1989), we held that the Excessive Fines Clause does not limit the award of punitive damages to a private party in a civil suit when the government neither has prosecuted the action nor has any right to receive a share of the damages. Id., at 264. The Court's opinion and Justice O'Connor's
We found it unnecessary to decide in Browning-Ferris whether the Excessive Fines Clause applies only to criminal cases. Id., at 263. The United States now argues that
It further suggests that the Eighth Amendment cannot apply to a civil proceeding unless that proceeding is so punitive that it must be considered criminal under Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), and United States v. Ward, 448 U.S. 242 (1980). Brief for United States 26-27. We disagree.
Some provisions of the Bill of Rights are expressly limited to criminal cases. The Fifth Amendment's SelfIncrimination Clause, for example, provides: "No person . . . shall be compelled in any criminal case to be a witness
Nor does the history of the Eighth Amendment require such a limitation. Justice O'Connor noted in BrowningFerris: "Consideration of the Eighth Amendment immediately followed consideration of the Fifth Amendment.
The purpose of the Eighth Amendment, putting the Bail Clause to one side, was to limit the government's power to punish. See Browning-Ferris, 492 U. S., at 266-267, 275. The Cruel and Unusual Punishments Clause is self-evidently concerned with punishment. The Excessive Fines Clause limits the government's power to extract payments, whether
In considering this question, we are mindful of the fact that sanctions frequently serve more than one purpose. We need not exclude the possibility that a forfeiture serves remedial purposes to conclude that it is subject to the limitations of the Excessive Fines Clause. We, however, must determine that it can only be explained as serving in part to punish. We said in Halper that "a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term." 490 U. S., at 448. We turn, then, to consider whether, at the time the Eighth Amendment was ratified, forfeiture was understood at least in part as punishment
Three kinds of forfeiture were established in England at the time the Eighth Amendment was ratified in the United States: deodand, forfeiture upon conviction for a felony or treason, and statutory forfeiture. See Calero-Toledo, 416 U. S., at 680-683. Each was understood, at least in part, as imposing punishment.
As Blackstone put it, "such misfortunes are in part owing to the negligence of the owner, and therefore he is properly punished by such forfeiture." 1 W. Blackstone, Commentaries *301.
The second kind of common-law forfeiture fell only upon those convicted of a felony or of treason. "The convicted felon forfeited his chattels to the Crown and his lands escheated
Third, "English Law provided for statutory forfeitures of offending objects used in violation of the customs and revenue laws." Calero-Toledo, 416 U. S., at 682. The most notable of these were the Navigation Acts of 1660 that required the shipping of most commodities in English vessels. Violations of the Acts resulted in the forfeiture of the illegally carried goods as well as the ship that transported them. See generally L. Harper, English Navigation Laws (1939). The statute was construed so that the act of an individual seaman, undertaken without the knowledge of the master or owner, could result in forfeiture of the entire ship. See Mitchell v. Torup, Park. 227, 145 Eng. Rep. 764 (Ex. 1766). Yet Blackstone considered such forfeiture statutes "penal." 3 W. Blackstone, at *261.
In Calero-Toledo, we observed that statutory forfeitures were "likely a product of the confluence and merger of the deodand tradition and the belief that the right to own property could be denied the wrongdoer." 416 U. S., at 682. Since each of these traditions had a punitive aspect, it is not surprising that forfeiture under the Navigation Acts was justified as a penalty for negligence: "But the Owners of Ships are to take Care what Master they employ, and the Master what Mariners; and here Negligence is plainly imputable to the Master; for he is to report the Cargo of the Ship, and if he had searched and examined the Ship with proper care, according to his Duty, he would have found the Tea . . . and
Of England's three kinds of forfeiture, only the third took hold in the United States. "Deodands did not become part of the common-law tradition of this country." CaleroToledo, 416 U. S., at 682. The Constitution forbids forfeiture of estate as a punishment for treason "except during the Life of the Person attainted," U. S. Const., Art. III, § 3, cl. 2, and the First Congress also abolished forfeiture of estate as a punishment for felons. Act of Apr. 30, 1790, ch. 9, § 24, 1 Stat. 117. "But `[l]ong before the adoption of the Constitution the common law courts in the Colonies—and later in the states during the period of Confederation—were exercising jurisdiction in rem in the enforcement of [English and local] forfeiture statutes.' " Calero-Toledo, 416 U. S., at 683, quoting C. J. Hendry Co. v. Moore, 318 U.S. 133, 139 (1943).
The First Congress passed laws subjecting ships and cargos involved in customs offenses to forfeiture. It does not follow from that fact, however, that the First Congress thought such forfeitures to be beyond the purview of the Eighth Amendment. Indeed, examination of those laws suggests that the First Congress viewed forfeiture as punishment. For example, by the Act of July 31, 1789, ch. 5, § 12, 1 Stat. 39, Congress provided that goods could not be unloaded except during the day and with a permit.
Forfeiture of the goods and vessel is listed alongside the other provisions for punishment. It is also of some interest that "forfeit" is the word Congress used for fine. See ibid. ("shall forfeit and pay the sum of four hundred dollars for every offence").
Our cases also have recognized that statutory in rem forfeiture imposes punishment. In Peisch v. Ware, 4 Cranch 347 (1808), for example, the Court held that goods removed from the custody of a revenue officer without the payment of duties should not be forfeitable for that reason unless they were removed with the consent of the owner or his agent. Chief Justice Marshall delivered the opinion for a unanimous Court:
The same understanding of forfeiture as punishment runs through our cases rejecting the "innocence" of the owner as a common-law defense to forfeiture. See, e. g., Calero-Toledo, 416 U. S., at 683; J. W. Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505 (1921); Dobbins's Distillery v. United States, 96 U.S. 395 (1878); Harmony v. United States, 2 How. 210 (1844); The Palmyra, 12 Wheat. 1 (1827). In these cases, forfeiture has been justified on two theories—that the property itself is "guilty" of the offense, and that the owner may be held accountable for the wrongs of others to whom he entrusts his property. Both theories rest, at bottom, on the notion that the owner has been negligent in allowing his property to be misused and that he is properly punished for that negligence.
The fiction that "the thing is primarily considered the offender," Goldsmith-Grant Co., 254 U. S., at 511, has a venerable history in our case law.
In none of these cases did the Court apply the guiltyproperty fiction to justify forfeiture when the owner had done all that reasonably could be expected to prevent the unlawful use of his property. In The Palmyra, it did no more than reject the argument that the criminal conviction of the owner was a prerequisite to the forfeiture of his property. See 12 Wheat., at 15 ("[N]o personal conviction of the offender is necessary to enforce a forfeiture in rem in cases of this nature"). In Harmony, the owners' claim of "innocence" was limited to the fact that they "never contemplated
The second theory on which the Court has justified the forfeiture of an "innocent" owner's property is that the owner may be held accountable for the wrongs of others to whom he entrusts his property. In Harmony, it reasoned that "the acts of the master and crew, in cases of this sort, bind the interest of the owner of the ship, whether he be innocent or guilty; and he impliedly submits to whatever the law denounces as a forfeiture attached to the ship by reason of their unlawful or wanton wrongs." 2 How., at 234. It repeated this reasoning in Dobbins's Distillery:
Like the guilty-property fiction, this theory of vicarious liability is premised on the idea that the owner has been negligent. Thus, in Calero-Toledo, we noted that application of forfeiture provisions "to lessors, bailors, or secured creditors who are innocent of any wrongdoing . . . may have the desirable effect of inducing them to exercise greater care in transferring possession of their property." 416 U. S., at 688.
In sum, even though this Court has rejected the "innocence" of the owner as a common-law defense to forfeiture, it consistently has recognized that forfeiture serves, at least in part, to punish the owner. See Peisch v. Ware, 4 Cranch, at 364 ("[T]he act punishes the owner with a forfeiture of the goods"); Dobbins's Distillery, 96 U. S., at 404 ("[T]he acts of violation as to the penal consequences to the property are to be considered just the same as if they were the acts of the owner"); Goldsmith-Grant Co., 254 U. S., at 511 ("`[S]uch misfortunes are in part owing to the negligence of the owner, and therefore he is properly punished by such forfeiture' "). More recently, we have noted that forfeiture serves "punitive and deterrent purposes," Calero-Toledo, 416 U. S., at 686, and "impos[es] an economic penalty," id., at 687. We conclude, therefore, that forfeiture generally and statutory in rem forfeiture in particular historically have been understood, at least in part, as punishment.
We turn next to consider whether forfeitures under 21 U. S. C. §§ 881(a)(4) and (a)(7) are properly considered punishment today. We find nothing in these provisions or their legislative history to contradict the historical understanding of forfeiture as punishment. Unlike traditional forfeiture statutes, §§ 881(a)(4) and (a)(7) expressly provide an "innocent owner" defense. See § 881(a)(4)(C) ("[N]o conveyance shall be forfeited under this paragraph to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge, consent, or willful blindness of the owner"); § 881(a)(7) ("[N]o property shall be forfeited under this paragraph, to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge or consent of that owner"); see also United States v. Parcel of Rumson, N. J., Land, 507 U.S. 111, 122-123 (1993) (plurality opinion) (noting difference from traditional forfeiture statutes). These exemptions serve to focus the provisions on the culpability of the owner in a way that makes them look more like punishment, not less. In United States v. United States Coin & Currency, 401 U.S. 715 (1971), we reasoned that 19 U. S. C. § 1618, which provides that the Secretary of the Treasury is to return the property of those who do not intend to violate the law, demonstrated Congress' intent "to impose a penalty only upon those who are significantly involved in a criminal enterprise." 401 U. S., at 721-722. The inclusion of innocent-owner defenses in §§ 881(a)(4) and (a)(7) reveals a similar congressional intent to punish only those involved in drug trafficking.
The legislative history of § 881 confirms the punitive nature of these provisions. When it added subsection (a)(7) to § 881 in 1984, Congress recognized "that the traditional criminal sanctions of fine and imprisonment are inadequate to deter or punish the enormously profitable trade in dangerous drugs." S. Rep. No. 98-225, p. 191 (1983).
The Government argues that §§ 881(a)(4) and (a)(7) are not punitive but, rather, should be considered remedial in two respects. First, they remove the "instruments" of the drug trade "thereby protecting the community from the threat of continued drug dealing." Brief for United States 32. Second, the forfeited assets serve to compensate the Government for the expense of law enforcement activity and for its expenditure on societal problems such as urban blight, drug addiction, and other health concerns resulting from the drug trade. Id., at 25, 32.
The Government's second argument about the remedial nature of this forfeiture is no more persuasive. We previously have upheld the forfeiture of goods involved in customs violations as "a reasonable form of liquidated damages." One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 237 (1972). But the dramatic variations in the value of conveyances and real property forfeitable under §§ 881(a)(4) and (a)(7) undercut any similar argument with respect to those provisions. The Court made this very point in Ward: The "forfeiture of property . . . [is] a penalty that ha[s] absolutely no correlation to any damages sustained by society or to the cost of enforcing the law." 448 U. S., at 254.
Fundamentally, even assuming that §§ 881(a)(4) and (a)(7) serve some remedial purpose, the Government's argument must fail. "[A] civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term." Halper, 490 U. S., at 448 (emphasis added). In light of the historical understanding of forfeiture as punishment, the
Austin asks that we establish a multifactor test for determining whether a forfeiture is constitutionally "excessive." See Brief for Petitioner 46-48. We decline that invitation. Although the Court of Appeals opined that "the government is exacting too high a penalty in relation to the offense committed," 964 F. 2d, at 818, it had no occasion to consider what factors should inform such a decision because it thought it was foreclosed from engaging in the inquiry. Prudence dictates that we allow the lower courts to consider that question
The judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.
It is so ordered.
Justice Scalia, concurring in part and concurring in the judgment.
We recently stated that, at the time the Eighth Amendment was drafted, the term "fine" was "understood to mean a payment to a sovereign as punishment for some offense." Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 265 (1989). It seems to me that the Court's opinion obscures this clear statement, and needlessly attempts to derive from our sparse case law on the subject of in rem forfeiture the questionable proposition that the owner of property taken pursuant to such forfeiture is always blameworthy. I write separately to explain why I consider this forfeiture a fine, and to point out that the excessiveness inquiry for statutory in rem forfeitures is different from the usual excessiveness inquiry.
Whether any sort of forfeiture of property may be covered by the Eighth Amendment is not a difficult question. "Forfeiture" and "fine" each appeared as one of many definitions of the other in various 18th-century dictionaries. See ante, at 614, n. 7. "Payment," the word we used in Browning-
In order to constitute a fine under the Eighth Amendment, however, the forfeiture must constitute "punishment," and it is a much closer question whether statutory in rem forfeitures, as opposed to in personam forfeitures, meet this requirement. The latter are assessments, whether monetary or in kind, to punish the property owner's criminal conduct, while the former are confiscations of property rights based on improper use of the property, regardless of whether the owner has violated the law. Statutory in rem forfeitures have a long history. See generally Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 680-686 (1974). The property to which they apply is not contraband, see the forfeiture Act passed by the First Congress, ante, at 613-614, nor is it necessarily property that can only be used for illegal purposes. The theory of in rem forfeiture is said to be that the lawful property has committed an offense. See, e. g., The Palmyra, 12 Wheat. 1, 14-15 (1827) (forfeiture of vessel for piracy); Harmony v. United States, 2 How. 210, 233-234 (1844) (forfeiture of vessel, but not cargo, for piracy); Dobbins's Distillery v. United States, 96 U.S. 395, 400-403 (1878) (forfeiture of distillery and real property for evasion of revenue laws); J. W. Goldsmith, Jr.-Grant Co. v. United
However the theory may be expressed, it seems to me that this taking of lawful property must be considered, in whole or in part, see United States v. Halper, 490 U.S. 435, 448 (1989), punitive.
The Court apparently believes, however, that only actual culpability of the affected property owner can establish that a forfeiture provision is punitive, and sets out to establish (in Part III) that such culpability exists in the case of in rem forfeitures. In my view, however, the case law is far more ambiguous than the Court acknowledges. We have never held that the Constitution requires negligence, or any other degree of culpability, to support such forfeitures. See ante,
I would have reserved the question without engaging in the misleading discussion of culpability. Even if punishment of personal culpability is necessary for a forfeiture to be a fine; and even if in rem forfeitures in general do not punish personal culpability; the in rem forfeiture in this case is a fine. As the Court discusses in Part IV, this statute, in contrast to the traditional in rem forfeiture, requires that the owner not be innocent—that he have some degree of culpability for the "guilty" property. See also United States v. Parcel of Rumson, N. J., Land, 507 U.S. 111, 121-123 (1993) (plurality opinion) (contrasting drug forfeiture statute with traditional statutory in rem forfeitures). Here, the property must "offend" and the owner must not be completely without fault. Nor is there any consideration of compensating for loss, since the value of the property is irrelevant to whether it is forfeited. That is enough to satisfy the Browning-Ferris standard, and to make the entire discussion
That this forfeiture works as a fine raises the excessiveness issue, on which the Court remands. I agree that a remand is in order, but think it worth pointing out that on remand the excessiveness analysis must be different from that applicable to monetary fines and, perhaps, to in personam forfeitures. In the case of a monetary fine, the Eighth Amendment's origins in the English Bill of Rights, intended to limit the abusive penalties assessed against the King's opponents, see Browning-Ferris, 492 U. S., at 266-267, demonstrate that the touchstone is value of the fine in relation to the offense. And in Alexander v. United States, we indicated that the same is true for in personam forfeiture. Ante, at 558.
Here, however, the offense of which petitioner has been convicted is not relevant to the forfeiture. Section § 881 requires only that the Government show probable cause that the subject property was used for the prohibited purpose. The burden then shifts to the property owner to show, by a preponderance of the evidence, that the use was made without his "knowledge, consent, or willful blindness," 21 U. S. C. § 881(a)(4)(C), see also § 881(a)(7), or that the property was not so used, see § 881(d) (incorporating 19 U. S. C. § 1615). Unlike monetary fines, statutory in rem forfeitures have traditionally been fixed, not by determining the appropriate value of the penalty in relation to the committed offense, but by determining what property has been "tainted" by unlawful use, to which issue the value of the property is irrelevant. Scales used to measure out unlawful drug sales, for example, are confiscable whether made of the purest gold or the basest metal. But an in rem forfeiture goes beyond the traditional limits that the Eighth Amendment permits if it applies to property that cannot properly be regarded as an instrumentality
This inquiry for statutory forfeitures has common-law parallels. Even in the case of deodands, juries were careful to confiscate only the instrument of death and not more. Thus, if a man was killed by a moving cart, the cart and its horses were deodands, but if the man died when he fell from a wheel of an immobile cart, only the wheel was treated as a deodand, since only the wheel could be regarded as the cause of death. 1 M. Hale, Pleas of the Crown *419—*422; 1 W. Blackstone, Commentaries *301—*302; Law of Deodands, 34 Law Mag., at 190. Our cases suggest a similar instrumentality inquiry when considering the permissible scope of a statutory forfeiture. Cf. Goldsmith-Grant, 254 U. S., at 510, 513; Harmony, 2 How., at 235 (ship used for piracy is forfeited, but cargo is not). The relevant inquiry for an excessive forfeiture under § 881 is the relationship of the property to the offense: Was it close enough to render the property, under traditional standards, "guilty" and hence forfeitable?
I join the Court's opinion in part, and concur in the judgment.
Justice Kennedy, with whom The Chief Justice and Justice Thomas join, concurring in part and concurring in the judgment.
I am in substantial agreement with Part I of Justice Scalia's opinion concurring in part and concurring in the judgment. I share Justice Scalia's belief that Part III of the Court's opinion is quite unnecessary for the decision of the case, fails to support the Court's argument, and seems rather doubtful as well.
In recounting the law's history, we risk anachronism if we attribute to an earlier time an intent to employ legal concepts
At some point, we may have to confront the constitutional question whether forfeiture is permitted when the owner has committed no wrong of any sort, intentional or negligent. That for me would raise a serious question. Though the history of forfeiture laws might not be determinative of that issue, it would have an important bearing on the outcome. I would reserve for that or some other necessary occasion the inquiry the Court undertakes here. Unlike Justice Scalia, see ante, at 625, I would also reserve the question whether in rem forfeitures always amount to an intended punishment of the owner of forfeited property.
With these observations, I concur in part and concur in the judgment.
Roger L. Conner, Robert Teir, Edward S. G. Dennis, Jr., and Peter Buscemi filed a brief for the American Alliance for Rights and Responsibilities et al. urging affirmance.
A brief of amici curiae was filed for the State of Arizona et al. by Grant Woods, Attorney General of Arizona, and Cameron H. Holmes and Sandra L. Janzen, Assistant Attorneys General, Daniel E. Lungren, Attorney General of California,George Williamson, Chief Assistant Attorney General, and Gary W. Schons, Domenick Galluzzo, Acting Chief State's Attorney of Connecticut, and by the Attorneys General for the irrespective jurisdictions as follows: Winston Bryant of Arkansas,Robert A. Butterworth of Florida, Michael J. Bowers of Georgia, Robert A. Marks of Hawaii, Larry EchoHawk of Idaho, Robert T. Stephan of Kansas, Chris Gorman of Kentucky,Richard P. Ieyoub of Louisiana,Michael Carpenter of Maine, J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Michael Moore of Mississippi, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Jeffrey R. Howard of New Hampshire, Tom Udall of New Mexico,Michael F. Easley of North Carolina, Susan B. Loving of Oklahoma, Ernest D. Preate, Jr., of Pennsylvania, Jeffrey B. Pine of Rhode Island, T. Travis Medlock of South Carolina, Dan Morales of Texas, Jan Graham of Utah, Stephen D. Rosenthal of Virginia,Christine O. Gregoire of Washington, Joseph B. Meyer of Wyoming, and Rosalie Simmonds Ballentine of the Virgin Islands.
"(4) All conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of [controlled substances, their raw materials, and equipment used in their manufacture and distribution]
. . . . .
"(7) All real property, including any right, title, and interest (including any leasehold interest) in the whole of any lot or tract of land and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, a violation of this subchapter punishable by more than one year's imprisonment . . . ."
Each provision has an "innocent owner" exception. See §§ 881(a)(4)(C) and (a)(7).
The Double Jeopardy Clause has been held not to apply in civil forfeiture proceedings, but only in cases where the forfeiture could properly be characterized as remedial. See United States v. One Assortment of 89 Firearms, 465 U.S. 354, 364 (1984); One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 237 (1972); see generally United States v. Halper, 490 U.S. 435, 446-449 (1989) (Double Jeopardy Clause prohibits second sanction that may not fairly be characterized as remedial). Conversely, the Fifth Amendment's Self-Incrimination Clause, which is textually limited to "criminal case[s]," has been applied in civil forfeiture proceedings, but only where the forfeiture statute had made the culpability of the owner relevant, see United States v. United States Coin & Currency, 401 U.S. 715, 721-722 (1971), or where the owner faced the possibility of subsequent criminal proceedings, see Boyd, 116 U. S., at 634; see also United States v. Ward, 448 U.S. 242, 253-254 (1980) (discussing Boyd ).
And, of course, even those protections associated with criminal cases may apply to a civil forfeiture proceeding if it is so punitive that the proceeding must reasonably be considered criminal. See Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963); Ward, supra.