513 U.S. 504 (1995)
HARRIS
v.
ALABAMA
No. 93-7659.
United States Supreme Court.
Argued December 5, 1994.
Decided February 22, 1995.
CERTIORARI TO THE SUPREME COURT OF ALABAMA
*506 O'Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 515.
Ruth E. Friedman argued the cause for petitioner. With her on the brief was Bryan A. Stevenson.
P. David Bjurberg, Assistant Attorney General of Alabama, argued the cause for respondent. With him on the brief was James H. Evans, Attorney General.
Justice O'Connor, delivered the opinion of the Court.
Alabama law vests capital sentencing authority in the trial judge, but requires the judge to consider an advisory jury verdict. We granted certiorari to consider petitioner's argument that Alabama's capital sentencing statute is unconstitutional because it does not specify the weight the judge must give to the jury's recommendation and thus permits arbitrary imposition of the death penalty.

*506 I
A defendant convicted of capital murder in Alabama is entitled to a sentencing hearing before the trial jury, Ala. Code § 13A-5-46 (1994), unless jury participation is waived by both parties and approved by the court, § 13A-5-44. The State must prove statutory aggravating factors beyond a reasonable doubt and must disprove, by a preponderance of the evidence, any mitigating circumstance the defendant may proffer. § 13A-5-45(g). The jury then renders an advisory verdict. If it finds that aggravating factors, if any, outweigh mitigating circumstances, then the jury recommends death; otherwise, the verdict is life imprisonment without parole. § 13A-5-46(e). The jury may recommend death only if 10 jurors so agree, while a verdict of life imprisonment requires a simple majority. § 13A-5-46(f). The recommendation and vote tally are reported to the judge.
The judge then must consider all available evidence and file a written statement detailing the defendant's crime, listing specific aggravating and mitigating factors, and imposing a sentence. Section 13A-5-47(e) provides:
"In deciding upon the sentence, the trial court shall determine whether the aggravating circumstances it finds to exist outweigh the mitigating circumstances it finds to exist, and in doing so the trial court shall consider the recommendation of the jury contained in its advisory verdict, unless such a verdict has been waived pursuant to Section 13A-5-46(a) or 13A-5 -  46(g). While the jury's recommendation concerning sentence shall be given consideration, it is not binding upon the court."
If the defendant is sentenced to death, his conviction and sentence are automatically reviewed by an appellate court and, if affirmed, a writ of certiorari is granted by the Alabama Supreme Court as a matter of right. In addition to reviewing the record for errors, the appellate courts must *507 independently weigh aggravating and mitigating circumstances and determine whether the death penalty is disproportionate to sentences rendered in comparable cases. § 13A-5-53(b).
Petitioner Louise Harris was married to the victim, a deputy sheriff, and was also having an affair with Lorenzo McCarter. She asked McCarter to find someone to kill her husband, and McCarter to that end approached a co-worker, who refused and reported the solicitation to his supervisor. McCarter then found willing accomplices in Michael Sockwell and Alex Hood, who were paid $100 and given a vague promise of more money upon performance. On the appointed night, as her husband left for work on the night shift, Harris called McCarter on his beeper to alert him. McCarter and Hood sat in a car parked on a nearby street, and Sockwell hid in the bushes next to a stop sign. As the victim stopped his car at the intersection, Sockwell sprang forth and shot him, point blank, with a shotgun. Harris was arrested after questioning, and McCarter agreed to bear witness to the conspiracy in exchange for the prosecutor's promise not to seek the death penalty. McCarter testified that Harris had asked him to kill her husband so they could share in his death benefits, which totaled about $250,000.
The jury convicted Harris of capital murder. At the sentencing hearing, a number of witnesses attested to her good background and strong character. She was rearing seven children, held three jobs simultaneously, and participated actively in her church. The jury recommended, by a 7 to 5 vote, that she be imprisoned for life without parole. The trial judge then considered her sentence, finding the existence of one aggravating circumstance, that the murder was committed for pecuniary gain, and one statutory mitigator, that Harris had no prior criminal record. The trial judge also found as nonstatutory mitigating circumstances that Harris was a hardworking, respected member of her church and community. Noting that Harris had planned the crime *508 and financed its commission and stood to benefit the most from her husband's murder, the judge concluded that "the one statutory aggravating circumstance found and considered far outweighs all of the non-statutory mitigating circumstances, and that the sentence ought to be death." App. 7. In separate proceedings, all the conspirators were convicted of capital murder. McCarter and Hood received prison terms of life without parole; Sockwell, the triggerman, was sentenced to death after the trial judge rejected a jury recommendation, again by a 7 to 5 vote, of life imprisonment.
The Alabama Court of Criminal Appeals affirmed Harris' conviction and sentence. 632 So. 2d 503 (1992). It noted that Alabama's death penalty statute is based on Florida's sentencing scheme, which we have held to be constitutional, see Spaziano v. Florida, 468 U. S. 447, 457-467 (1984); Proffitt v. Florida, 428 U. S. 242, 252 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). One difference is that jury recommendations are to be given "great weight" by the sentencing judge in Florida, see Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975), whereas Alabama only requires the judge to "consider" the advisory verdict. The Court of Criminal Appeals rejected Harris' contention that Florida's so-called Tedder standard is constitutionally required, however. 632 So. 2d, at 538. As the statute prescribes, the court then reviewed the record for prejudicial errors and independently weighed the aggravating and mitigating circumstances. Finding no errors and concluding that death was the proper sentence, the court affirmed. Id., at 542 -  543. The Alabama Supreme Court also affirmed, discussing an unrelated claim. 632 So. 2d 543 (1993). We granted certiorari. 512 U. S. 1234 (1994).

II
Alabama's capital sentencing scheme is much like that of Florida. Both require jury participation in the sentencing process but give ultimate sentencing authority to the *509 trial judge. Ala. Code § 13A-5-47(e) (1994); Fla. Stat. § 921.141(3) (1985). A sentence of death in both States is subject to automatic appellate review. Ala. Code § 13A -  5-55 (1994); Fla. Stat. § 921.141(4) (1985). In Florida, as in Alabama, the reviewing courts must independently weigh aggravating and mitigating circumstances to determine the propriety of the death sentence, Ala. Code § 13A-5-53(b)(2) (1994); Harvard v.State, 375 So. 2d 833 (Fla.), cert. denied, 441 U. S. 956 (1977), and must decide whether the penalty is excessive or disproportionate compared to similar cases, Ala. Code § 13A-5-53(b)(3) (1994); Williams v. State, 437 So. 2d 133 (Fla. 1983), cert. denied, 466 U. S. 909 (1984).
The two States differ in one important respect. The Florida Supreme Court has opined that the trial judge must give "great weight" to the jury's recommendation and may not override the advisory verdict of lifeunless "the facts suggesting a sentence of death [are] so clear and convincing that virtually no reasonable person could differ." Tedder v. State, supra, at 910. The same deference inures to a jury recommendation of death. See Grossman v. State, 525 So. 2d 833, 839, n. 1 (Fla. 1988) (collecting cases). The Alabama capital sentencing statute, by contrast, requires only that the judge "consider" the jury's recommendation, and Alabama courts have refused to read the Tedder standard into the statute. See Ex parte Jones, 456 So. 2d 380, 382-383 (Ala. 1984). This distinction between the Alabama and Florida schemes forms the controversy in this case - whether the Eighth Amendment to the Constitution requires the sentencing judge to ascribe any particular weight to the verdict of an advisory jury.
We have held Florida's capital sentencing statute to be constitutional. See Proffitt v. Florida, supra; Spaziano v. Florida, supra. In Spaziano, we addressed the specific question whether Florida could, consistent with the Constitution, vest sentencing authority in the judge and relegate the jury to an advisory role. While acknowledging that sentencing *510 power resides with the jury in most States, we made clear that the "Eighth Amendment is not violated every time a State reaches a conclusion different from a majority of its sisters over how best to administer its criminal laws." Id. , at 464. We therefore rejected the contention that "placing the responsibility on a trial judge to impose the sentence in a capital case is so fundamentally at odds with contemporary standards of fairness and decency that Florida must be required to alter its scheme and give final authority to the jury to make the life-or-death decision." Id., at 465; see also Walton v. Arizona, 497 U. S. 639, 648 (1990); Clemons v. Mississippi, 494 U. S. 738, 745 (1990).
Asserting that the death penalty serves no function in "rehabilitation," "incapacitation," or "deterren[ce]," Justice Stevens argues that a jury "should bear the responsibility to express the conscience of the community on the ultimate question of life or death in particular cases." Post, at 517, 518 (internal quotation marks omitted). What purpose is served by capital punishment and how a State should implement its capital punishment scheme - to the extent that those questions involve only policy issues - are matters over which we, as judges, have no jurisdiction. Our power of judicial review legitimately extends only to determine whether the policy choices of the community, expressed through its legislative enactments, comport with the Constitution. As we have noted elsewhere, "while we have an obligation to insure that constitutional bounds are not overreached, we may not act as judges as we might as legislators." Gregg  v. Georgia, 428 U. S. 153, 174-175 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.).
In various opinions on the Florida statute we have spoken favorably of the deference that a judge must accord the jury verdict under Florida law. While rejecting an ex post facto  challenge in Dobbert v. Florida, 432 U. S. 282, 294 (1977), we noted the "crucial protection" provided by the standard of Tedder v. State, supra, at 910. In the same fashion, in *511 dismissing Spaziano's argument that the Tedder standard was wrongly applied by the lower courts in his case, we stated:
"This Court already has recognized the significant safeguard the Tedder standard affords a capital defendant in Florida. See Dobbert v. Florida, 432 U. S. 282, 294-295 (1977). See also Proffitt, 428 U. S., at 249 (joint opinion). We are satisfied that the Florida Supreme Court takes that standard seriously and has not hesitated to reverse a trial court if it derogates the jury's role." Spaziano, supra, at 465.
These statements of approbation, however, do not mean that the Tedder standard is constitutionally required. As we stated in Spaziano immediately following the passage quoted above: "Our responsibility, however, is not to secondguess the deference accorded the jury's recommendation in a particular case, but to ensure that the result of the process is not arbitrary or discriminatory." 468 U. S., at 465. We thus made clear that, our praise for Tedder notwithstanding, the hallmark of the analysis is not the particular weight a State chooses to place upon the jury's advice, but whether the scheme adequately channels the sentencer's discretion so as to prevent arbitrary results. See also Proffitt, 428 U. S., at 252-253 (joint opinion of Stewart, Powell, and Stevens, JJ.).
Consistent with established constitutional law, Alabama has chosen to guide the sentencing decision by requiring the jury and judge to weigh aggravating and mitigating circumstances. Harris does not challenge this legislative choice. And she objects to neither the vesting of sentencing authority in the judge nor the requirement that the advisory verdict be considered in the process. What she seeks instead is a constitutional mandate as to how that verdict should be considered; relying on Florida's standard, she suggests that the judge must give "great weight" to the jury's advice.
*512 We have rejected the notion that "a specific method for balancing mitigating and aggravating factors in a capital sentencing proceeding is constitutionally required." Franklin  v. Lynaugh, 487 U. S. 164, 179 (1988). Equally settled is the corollary that the Constitution does not require a State to ascribe any specific weight to particular factors, either in aggravation or mitigation, to be considered by the sentencer. See, e. g., Blystone v. Pennsylvania, 494 U. S. 299, 306-307 (1990); Eddings v. Oklahoma, 455 U. S. 104, 113-115 (1982); Proffitt, supra, at 257-258 (joint opinion of Stewart, Powell, and Stevens, JJ.). To require that "great weight" be given to the jury recommendation here, one of the criteria to be considered by the sentencer, would offend these established principles and place within constitutional ambit micro management tasks that properly rest within the State's discretion to administer its criminal justice system. We therefore hold that the Eighth Amendment does not require the State to define the weight the sentencing judge must accord an advisory jury verdict.
Harris argues that, under Alabama law, the verdict is more than advisory and that the jury in fact enjoys the key sentencing role, subject only to review by the judge. For support, she points to Alabama cases reversing death sentences where prejudicial errors were committed before the advisory jury. See Ex parte Williams, 556 So. 2d 744, 745 (Ala. 1987). Unless the jury played a key role, so goes the argument, reversal would not be warranted because the sentencing judge was not exposed to the same harmful error. The flaw in this contention is that reversal is proper so long as the jury recommendation plays a role in the judge's decision, not necessarily a determinative one. If the judge must consider the jury verdict in sentencing a capital defendant, as the statute plainly requires, then it follows that a sentence is invalid if the recommendation upon which it partially rests was rendered erroneously. In Espinosa v. Florida, 505 U. S. 1079 (1992), the advisory jury, but not the sentencing *513 judge, was presented with an invalid aggravating factor. We summarily reversed the death sentence, explaining that "Florida has essentially split the weighing process in two. Initially, the jury weighs aggravating and mitigating circumstances, and the result of that weighing process is then in turn weighed within the trial court's process of weighing aggravating and mitigating circumstances." Id., at 1082. Error is committed when the jury considers an invalid factor and its verdict is in turn considered by the judge: "This kind of indirect weighing of an invalid aggravating factor creates the same potential for arbitrariness as the direct weighing of an invalid aggravating factor, and the result, therefore, was error." Ibid. (citation omitted). Such consequential error attaches whenever the jury recommendation is considered in the process, not only when it is given great weight by the judge.
We have observed in the Florida context that permitting the trial judge to reject the jury's advisory verdict may afford capital defendants "a second chance for life with the trial judge," Dobbert, 432 U. S., at 296. In practice, however, Alabama's sentencing scheme has yielded some ostensibly surprising statistics. According to the Alabama Prison Project, there have been only 5 cases in which the judge rejected an advisory verdict of death, compared to 47 instances where the judge imposed a death sentence over a jury recommendation of life. Statistics compiled by the Alabama Prison Project (Nov. 29, 1994) (lodged with the Clerk of this Court). But these numbers do not tell the whole story. We do not know, for instance, how many cases in which a jury recommendation of life imprisonment is adopted would have ended differently had the judge not been required to consider the jury's advice. Without such a subjective look into the minds of the decisionmakers, the deceptively objective numbers afford at best an incomplete picture. Even assuming that these statistics reflect a true view of capital sentencing in Alabama, they say little about *514 whether the scheme is constitutional. That question turns not solely on a numerical tabulation of actual death sentences as compared to a hypothetical alternative, but rather on whether the penalties imposed are the product of properly guided discretion and not of arbitrary whim. If the Alabama statute indeed has not had the effect that we or its drafters had anticipated, such unintended results would be of little constitutional consequence. An ineffectual law is for the state legislature to amend, not for us to annul.
Harris draws our attention to apparent disparities in the weight given to jury verdicts in different cases in Alabama. For example, the trial judge here did not specify his reason for rejecting the jury's advice but in another case wrote that he accorded "great weight" to the recommendation, State v. Coral, No. CC-88-741 (Montgomery Cty., June 26, 1992), Alabama Capital Sentencing Orders, p. 72 (lodged with the Clerk of this Court). In rejecting the jury verdict, other judges have commented variously that there was a "reasonable basis" to do so, State v. Parker, No. CC-88-105 (Colbert Cty., Dec. 3, 1991), Alabama Capital Sentencing Orders, at 408, that the verdict was "unquestionably a bizarre result," Ex parte Hays, 518 So. 2d 768, 777 (Ala. 1986), or that "if this were not a proper case for the death penalty to be imposed, a proper case can scarcely be imagined," State v. Frazier, No. CC-85-3291 (Mobile Cty., July 31, 1990), Alabama Capital Sentencing Orders, at 139. Juxtaposing these statements, Harris argues that the Alabama statute permits judges to reject arbitrarily the advisory verdict, thereby abusing their sentencing discretion.
But these statements do not indicate that the judges have divergent understandings of the statutory requirement that the jury verdicts be considered; they simply illustrate how different judges have "considered" the jury's advice. There is no reason to expect that the advisory verdicts will be treated uniformly in every case. The Alabama statute provides that the weighing process "shall not be defined to mean *515 a mere tallying of aggravating and mitigating circumstances for the purpose of numerical comparison," Ala. Code § 13A -  5-48 (1994), which is no less than what the Constitution requires, see Proffitt, 428 U. S., at 258 (joint opinion of Stewart, Powell, and Stevens, JJ.). The disparate treatment of jury verdicts simply reflects the fact that, in the subjective weighing process, the emphasis given to each decisional criterion must of necessity vary in order to account for the particular circumstances of each case. See Eddings v. Oklahoma, 455 U. S., at 112 ("[A] consistency produced by ignoring individual differences is a false consistency"). In any event, Harris does not show how the various statements affect her case. She does not bring an equal protection claim, and she does not contest the lower courts' conclusion that her sentence is proportionate to that imposed in similar cases. The sentiments expressed in unrelated cases do not render her punishment violative of the Eighth Amendment.
The Constitution permits the trial judge, acting alone, to impose a capital sentence. It is thus not offended when a State further requires the sentencing judge to consider a jury's recommendation and trusts the judge to give it the proper weight. Accordingly, we affirm the judgment of the Alabama Supreme Court.
It is so ordered.
Justice Stevens, dissenting.
Alabama's capital sentencing statute is unique. In Alabama, unlike any other State in the Union, the trial judge has unbridled discretion to sentence the defendant to death - even though a jury has determined that death is an inappropriate penalty, and even though no basis exists for believing that any other reasonable, properly instructed jury would impose a death sentence. Even if I accepted the reasoning of Spaziano v. Florida, 468 U. S. 447, 457-465 (1984), which I do not, see id., at 467 (Stevens, J., concurring in part and dissenting in part), I would conclude that the complete *516 absence of standards to guide the judge's consideration of the jury's verdict renders the statute invalid under the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment.

I
Our opinions have repeatedly emphasized that death is a fundamentally different kind of penalty from any other that society may impose.[1] State legislatures' assignments of sentencing authority exemplify the distinction. In every State except Oklahoma, the trial judge rather than the jury is responsible for sentencing in noncapital cases. The opposite consensus, however, prevails in capital cases. In 33 of the 37 States that authorize capital punishment, the jury participates in the sentencing decision. In 29 of those States, the jury's decision is final; in the other 4 - Alabama, Delaware, Florida, and Indiana - the judge has the power to override the jury's decision. Russell, The Constitutionality of Jury Override in Alabama Death Penalty Cases, 46 Ala. L. Rev. 5, 9-10 (1994). Thus, 33 of the 37 state legislatures that have enacted death penalty statutes have given the jury sentencing responsibilities that differ from the prevailing view of the jury's role in noncapital cases. The Federal Government also provides for jury sentencing in capital cases.[2]
These legislative decisions reflect the same judgment expressed in England in 1953 after a 4-year study by the Royal Commission on Capital Punishment:
"The question whether there are grounds for relieving the prisoner from the liability to be sentenced to death *517 is a question of quite a different order from the question whether he should serve a shorter or a longer term of imprisonment, and involves much deeper moral and social issues. The lesson of history is that, when a criminal offence is punishable by death, in practice juries will not confine their attention to the issue of guilt and ignore the sentence which conviction entails. In the past, British juries, by perverse verdicts and by petitions, did at leastas much as the campaigns of the reformers to bring the law into conformity with the developing moral conceptions of the community, especially in the field of capital punishment. It may well be argued that the men and women of the jury may be regarded as a microcosm of the community, who will reflect the changing attitudes of society as a whole to the infliction of capital punishment, and that there could therefore be no more appropriate body to decide whether the fellow-citizen whom they have found guilty of murder should suffer the penalty of death prescribed by the law or should receive a lesser punishment." Royal Commission on Capital Punishment 1949-1953, Report 200 (1953).
In ordinary, noncapital sentencing decisions, judges consider society's interests in rehabilitating the offender, in incapacitating him from committing offenses in the future, and in deterring others from committing similar offenses. In capital sentencing decisions, however, rehabilitation plays no role; incapacitation is largely irrelevant, at least when the alternative of life imprisonment without possibility of parole is available;[3] and the assumption that death provides a greater deterrent than other penalties is unsupported by *518 persuasive evidence.[4] Instead, the interest that we have identified as the principal justification for the death penalty is retribution: "[C]apital punishment is an expression of society's moral outrage at particularly offensive conduct." Gregg v. Georgia, 428 U. S. 153, 183 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.);see Gillers, Deciding Who Dies, 129 U. Pa. L. Rev. 1, 54-56 (1980). A capital sentence expresses the community's judgment that no lesser sanction will provide an adequate response to the defendant's outrageous affront to humanity. Gregg, 428 U. S., at 184. A representative cross section of the community should bear the responsibility to "express the conscience of the community on the ultimate question of life or death" in particular cases. Witherspoon v. Illinois, 391 U. S. 510, 519 (1968) (footnote omitted). An expression of community outrage carries the legitimacy of law only if it rests on fair and careful consideration, as free as possible from passion or prejudice. Although the public's apparent zeal for legislation authorizing capital punishment might cast doubt on citizens' capacity to apply such legislation fairly, I am convinced that our jury system provides reliable insulation against the passions of the polity. Voting for a political candidate who vows to be "tough on crime" differs vastly from voting at the conclusion of an actual trial to condemn a specific individual to death. Jurors' responsibilities terminate when their case ends; they answer only to their own consciences; they rarely have any concern about possible reprisals after their work is done. More importantly, they focus their attention on a particular case involving the fate of one fellow citizen, rather than on a generalized remedy for a global category of faceless violent criminals who, in the abstract, may appear unworthy of life. A jury verdict expresses a collective judgment *519 that we may fairly presume to reflect the considered view of the community.
The Constitution does not permit judges to determine the guilt or innocence of an accused without her consent. The same reasons that underlie that prohibition apply to life-ordeath sentencing decisions. The Framers of our Constitution "knew from history and experience that it was necessary to protect . . . against judges too responsive to the voice of higher authority." Duncan v. Louisiana, 391 U. S.145, 156 (1968). As we explained in Duncan:
"[T]he jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power - a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respects, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence." Ibid.  Community participation is as critical in life-or-death sentencing decisions as in those decisions explicitly governed by the constitutional guarantee of a jury trial. The "higher authority" to whom present-day capital judges may be "too responsive" is a political climate in which judges who covet higher office - or who merely wish to remain judges - must constantly profess their fealty to the death penalty.[5] Alabama *520 trial judges face partisan election every six years. Ala. Code § 17-2 - 7 (1987). The danger that they will bend to political pressures when pronouncing sentence in highly publicized capital cases is the same danger confronted by judges beholden to King George III.

II
In my opinion, total reliance on judges to pronounce sentences of death is constitutionally unacceptable. See Walton v. Arizona, 497 U. S. 639, 708 (1990) (Stevens, J., dissenting). While the addition of an advisory jury may ameliorate concerns about judicial sentencing in some cases, more often that addition makes the scheme much worse, especially when, as in Alabama, the jury's verdict carries no necessary weight.
If Alabama's statute expressly provided for a death sentence upon a verdict by either the jury or the judge, I have no doubt it would violate the Constitution's command that no defendant "be twice put in jeopardy of life or limb." U. S. Const., Amdt. 5; cf. Bullington v. Missouri, 451 U. S.
5; The 430, 444-446 (1981). Alabama scheme has the same practical effect. As the Court recognizes, ante, at 513, Alabama trial judges almost always adopt jury verdicts recommending death; a prosecutor who wins before the jury can be confident that the defendant will receive a death sentence. A prosecutor who loses before the jury gets a second, fresh opportunity to secure a death sentence. She may present the judge with exactly the same evidence and arguments *521 that the jury rejected. The defendant's life is twice put in jeopardy, once before the jury and again in the repeat performance before a different, and likely less sympathetic, decisionmaker. A scheme that we assumed would "provid[e] capital defendants with more, rather than less, judicial protection," Dobbert v. Florida, 432 U. S. 282, 295 (1977),[6] has perversely devolved into a procedure that requires the defendant to stave off a death sentence at each of two de novo  sentencing hearings.
Not surprisingly, given the political pressures they face, judges are far more likely than juries to impose the death penalty. This has long been the case,[7] and the recent experience of judicial overrides confirms it. Alabama judges have vetoed only five jury recommendations of death, but they have condemned 47 defendants whom juries would have spared.[8] The Court acknowledges this "ostensibly surprising" *522 fact, ante, at 513, but dismisses it as inconclusive, because "[w]e do not know . . . how many cases in which a jury recommendation of life imprisonment is adopted would have ended differently had the judge not been required to consider the jury's advice," ibid. This attempt to shrug off the reality of Alabama capital sentencing misses the point. Perhaps Alabama judges would be even more severe, and their sentences even more frequently inconsistent with the community's sense of justice, if Alabama provided for no jury verdicts at all. But the proper frame of reference is not a sentencing scheme with no jury; rather, it is a sentencing scheme with no judge - the scheme maintained by 29 of 37 States with capital punishment. In that comparison, the fact that Alabama trial judges have overridden more than nine juries' life recommendations for every vetoed death recommendation is conclusive indeed. Death sentences imposed by judges, especially against jury recommendations, sever the critical "link between contemporary community values and the penal system." Witherspoon, 391 U. S., at 519, n. 15. They result in the execution of defendants whom the community would spare.
Death sentences imposed by judges over contrary jury verdicts do more than countermand the community's judgment: They express contempt for that judgment. Judicial overrides undermine the jury system's central tenet that "sharing in the administration of justice is a phase of civic responsibility." Thiel v. Southern Pacific Co., 328 U. S. 217, 227 (1946) (Frankfurter, J., dissenting). Overrides also sacrifice the legitimacy of jury verdicts, at potentially great cost. Whereas the public presumes that a death sentence imposed by a jury reflects the community's judgment that death is the appropriate response to the defendant's crime, the same presumption does not attach to a lone government *523 official's decree. Indeed, government-sanctioned executions unsupported by judgments of a fair cross section of the citizenry may undermine respect for the value of human life itself and unwittingly increase tolerance of killing.[9] As Justice Brandeis reminded us, "Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious." Olmstead v. United States, 277 U. S. 438, 485 (1928) (dissenting opinion). Unless the imposition of the death penalty consistently rests on the most scrupulous regard for fair procedure and the application of accepted community standards, it may well teach a lesson that aggravates the very dangers it was intended to deter.

*524 III
If the Court correctly held in Spaziano that the Constitution's concerns with regularity and fairness do not bar judges from imposing death sentences over contrary jury verdicts, one would at least expect the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment to require that such schemes maintain strict standards to regularize and constrain the judge's discretion. The Court today refuses to impose any standard, holding that to do so would be "micro management." Ante, at 512. But this case involves far more than a mundane administrative detail.
Alabama stands alone among the States in its refusal to constrain its judges' power to condemn defendants over contrary jury verdicts. The Florida statute upheld in Spaziano, as interpreted by the Florida Supreme Court, requires the prosecutor to satisfy a more stringent standard before the judge than before the jury, prohibiting a judicial override unless the facts supporting the death sentence are "so clear and convincing that virtually no reasonable person could differ." Tedder v. State, 322 So. 2d 908, 910 (1975). If that standard is satisfied, a judge may rationally presume that the jury's verdict did not fairly reflect the judgment of the community. Delaware and Indiana impose similar requirements for overrides. See Pennell v. State, 604 A. 2d 1368, 1377-1378 (Del. 1992); Martinez-Chavez v. State, 534 N. E. 2d 731, 735 (Ind. 1989).
We have repeatedly cited the Tedder standard with approval, suggesting that the Constitution requires such a constraint on a jury override provision. See Spaziano, 468 U. S., at 465; Dobbert v. Florida, 432 U. S., at 294-295; Proffitt v. Florida, 428 U. S. 242, 252 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). Today the Court dismisses those statements. After Justice Blackmun stated in his opinion for the Court in Spaziano that "[w]e are satisfied that the Florida Supreme Court takes [Tedder] seriously *525 and has not hesitated to reverse a trial court if it derogates the jury's role," he added, as the majority notes, that "[o]ur responsibility, however, is not to second-guess the deference accorded the jury's recommendation in a particular case, but to ensure that the result of the process is not arbitrary or discriminatory." 468 U. S., at 465. The majority reads this second statement to mean that "the hallmark of the analysis is not the particular weight a State chooses to place upon the jury's advice." Ante, at 511. That reading is overly ambitious at best. The question whether the Constitution requires the Tedder rule goes squarely to "the result of the process." The Spaziano Court declined to upset the result in the "particular case" before it based on the way the Florida Supreme Court had applied Tedder in that case. It did not announce that it would have reached the same result had Florida abjured Tedder entirely; rather, it appears to have made Tedder `s role in the Florida scheme a necessary consideration in its evaluation of Florida overrides. The Court's reading of Justice Blackmun's opinion in Spaziano is tenable, but a more likely reading is that his opinion meant to echo our previous suggestions that a jury override scheme is unconstitutional without Tedder.
I would follow those suggestions and recognize Tedder as a constitutional imperative. As I have explained, an unfettered judicial override of a jury verdict for life imprisonment cannot be taken to represent the judgment of the community. A penalty that fails to reflect the community's judgment that death is the appropriate sentence constitutes cruel and unusual punishment under our reasoning in Gregg. Remarkably, the Court attempts to bolster its holding by citing our reversal of a Florida death sentence for error before the advisory jury. Ante, at 512-513, citing Espinosa v. Florida,  505 U. S. 1079 (1992). The Court forgets that the difference between Florida and Alabama is precisely what is at stake in this case. The Constitution compelled Espinosa for the *526 same ultimate reason it compels Tedder: The community's undistorted judgment must decide a capital defendant's fate.[10] Proper attention to Espinosa would lead the Court to reject the conclusion it reaches today.
In reaching its result the Court also fails to consider our longstanding principle that the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Trop v. Dulles, 356 U. S. 86, 101 (1958). The Spaziano Court held that the rejection of capital jury sentencing by all but seven States, and of capital jury overrides by all but (at that time) three, did not demonstrate an "evolving standard" disfavoring overrides. Spaziano , 468 U. S., at 463-464. Surely, however, the rejection of standardless overrides by every State in the Union but Alabama is a different matter. Cf. Enmund v. Florida, 458 U. S. 782, 789-793 (1982).
The Court today casts a cloud over the legitimacy of our capital sentencing jurisprudence. The most credible justification for the death penalty is its expression of the community's outrage. To permit the State to execute a woman in spite of the community's considered judgment that she should not die is to sever the death penalty from its only legitimate mooring. The absence of any rudder on a judge's free-floating power to negate the community's will, in my judgment, renders Alabama's capital sentencing scheme fundamentally unfair and results in cruel and unusual punishment. I therefore respectfully dissent.
NOTES
[1]  See, e. g., Lankford v. Idaho, 500 U. S. 110, 125 (1991); Clemons v. Mississippi, 494 U. S. 738, 750, n. 4 (1990); Booth v. Maryland, 482 U. S. 496, 509, n. 12 (1987); Solem v. Helm, 463 U. S. 277, 289, 294 (1983); Enmund  v. Florida, 458 U. S. 782, 797 (1982); Beck v. Alabama, 447 U. S. 625, 637 -  638 (1980);Gardner v. Florida, 430U. S. 349,357-358 (1977)(plurality opinion).
[2]  SeeViolent Crime Controland Law Enforcement Act of1994, 108 Stat. 1966-1967.
[3]  In Gregg v. Georgia, 428 U. S. 153 (1976), although we noted that incapacitation had been advanced as a rationale for upholding the death penalty,id., at 183, n.28 (joint opinion of Stewart,Powell, and Stevens, JJ.), the joint opinion placed no reliance on incapacitation as an acceptable justification.See California v. Ramos, 463 U. S. 992, 1023, and n. 9 (1983) (Marshall, J., dissenting).
[4]  See, e. g., Spaziano v. Florida, 468 U. S. 447, 478-479 (1984) (Stevens, J., concurring in part and dissenting in part); H. Zeisel, The Limits of Law Enforcement 60-63 (1982); Gillers, Deciding Who Dies, 129 U. Pa. L. Rev. 1, 49-54 (1980).
[5]  This climate is evident in political attacks on candidates with reservations about the death penalty.For example, challengers for United States Senate seatsin the recent electionsroutinelysavaged their incumbent opponents for supporting federal judicial nominees perceived to be "soft" on capital punishment. See, e. g., Lehigh & Phillips, Romney, Kennedy Air Another Round of Attack Ads, Boston Globe,Oct. 31, 1994,Metro/ Region section,p. 21;Lesher, Huffington Attacks Rival on Judges, Los Angeles Times, Sept. 30, 1994, p. A3; Political Notebook, Memphis CommercialAppeal, Oct. 8,1994, p.3B (Frist-Sasser race).Some Senators have also made the death penalty a litmustest injudicial confirmation hearings. See, e. g., Lewis, G. O. P. To Challenge Judicial Nominees Who Oppose Death Penalty, N. Y. Times, Oct. 15, 1993, p. A26; Vick, Barkett's Foes Show Strength Even in Defeat, St. Petersburg Times, Mar. 18, 1994, p. 5B. As one commentator has written: "Most experts on penal systems agree that capital punishment does not deter capital crime. But the public believes that it does, and politicians have been switching longstanding positions to accommodate that view. . . . This . . . is the democratic system." Wills, Read Polls, Heed America, N. Y. Times, Nov. 6, 1994, section 6 (magazine), p. 48.
[6]  I have always believed the legislative decision to authorize an override was intended to protect the defendant from the risk of an erroneous jury decision to impose the death penalty. See Proffitt v. Florida, 428 U. S. 242, 252-253 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ.). States have in the past argued that the override would serve to protect defendants. See, e. g., Brief for Respondent in Dobbert v. Florida, O. T. 1976, No. 76-5306, p. 17 ("It cannot be said that Florida's new [override] procedure reduces the possibility of mercy. In fact, it is enhanced").
[7]  See H. Zeisel, Some Data on Juror Attitudes Towards Capital Punishment 37-50 (1968).
[8]  Statistics from Florida and Indiana confirm that judges tend to override juries' life recommendations far more often than their death recommendations. Between 1972 and early 1992, Florida trial judges imposed death sentences over 134 juries' recommendations of life imprisonment. See Radelet and Mello, Death-to-Life Overrides: Saving the Resources of the Florida Supreme Court, 20 Fla. St. U. L. Rev. 195, 196 (1992). During the same period, Florida judges overrode only about 51 death recommendations. Id., at 210-211. In Indiana, between 1980 and early 1994, judges had used overrides to impose eight death sentences and only four life sentences. Memorandum from Paula Sites, Legal Director, Indiana Public Defender Council, to Supreme Court Library (Feb. 8, 1994) (lodged with the Clerk of this Court). The even more extreme disparity in Alabama may well be attributable to Alabama's unique failure to adopt the more stringent standard that governs overrides in the other States. See infra, at Part III.
[9]  Research has provided evidence that executions actually increase the level of violence in society. For example, a controlled, 56-year study in New York State revealed that an average of two additional homicides occurred in the month following an execution. See Bowers & Pierce, Deterrence or Brutalization: What Is the Effect of Executions?, 26 Crime and Delinquency 453 (1980). A 10-year study in California produced less conclusive but similar results. See Graves, The Deterrent Effect of Capital Punishment in California, in The Death Penalty in America 322, 327-331 (H. Bedau ed. 1967). Experienced prosecutors recognize this reality. Morgenthau, What Prosecutors Won't Tell You, N. Y. Times, Feb. 7, 1995, p. A25 ("[B]y their brutalizing and dehumanizing effect on society, executions cause more murders than they prevent"). A court's unilateral decree of a death sentence surely magnifies the risk of such perverse consequences. This Court's recent refusal to stay an execution provides an illustration. After a jury had sentenced the defendant, the prosecutor announced that a different person had pulled the trigger. Nevertheless, the State executed the condemned man without giving him a chance to present this information to a jury. See Jacobs v. Scott, post, at 1067 (Stevens, J., dissenting from denial of stay of execution). Six days later, a news account described death penalty supporters' lack of concern about the danger of executing innocent people. "One [proponent of capital punishment] likened the death penalty to a childhood vaccine approved by the government with full knowledge that at least one child, somewhere, would die from an adverse reaction." Verhovek, When Justice Shows Its Darker Side, N. Y. Times, Jan. 8, 1995, section 4, p. 6.
[10]  Of course, the majority is correct to reaffirm the importance of remedying prejudicial error before advisory juries. When the Court next has occasion to review an Alabama jury-related error and the sentencing judge has not revealed the degree of her reliance on the jury's advice, the majority apparently will be content to presume that the error, and the jury decision it tainted, mattered to the result.


258 U.S. 219 (1922)
IRWIN
v.
WRIGHT, COUNTY TREASURER OF MARICOPA COUNTY, STATE OF ARIZONA, ET AL.
No. 110.
Supreme Court of United States.
Submitted January 24, 1922.
Decided March 20, 1922.
APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF ARIZONA.
*220 Mr. Patrick H. Loughran and Mr. Ernest W. Lewis for appellant. Mr. M.J. Dougherty, Mr. G.A. Rodgers and Mr. F.H. Swenson were also on the brief.
Mr. James M. Sheridan, Mr. Geo. D. Christy, Mr. R.E.L. Shepherd and Mr. Joseph E. Noble for appellees.
MR. CHIEF JUSTICE TAFT delivered the opinion of the court.
The appellant Irwin, a citizen of California, filed his bill of complaint in the District Court against the Treasurer, the Assessor, the Attorney, the Sheriff, and the members of the Board of Supervisors, of Maricopa County, Arizona, citizens of Arizona. He averred that he had an interest, as a homestead entryman, under the General Homestead Act of Congress of May 20, 1862, c. 75, 12 Stat. 392, and the Reclamation Act of June 17, 1902, c. 1093, 32 Stat. 388, in land included within the Salt River Reclamation project in Maricopa County, that he had not fulfilled many of the conditions by him to be performed before the title to the land would vest in him, that meantime it was the property of the United States and not subject to taxation by a State, that he brought the suit in behalf of himself and also in behalf of other reclamation homestead entrymen within the Salt River Project in Maricopa County, and their assigns, similarly situated, desiring to *221 avail themselves of the benefits of it, that the defendants had levied and assessed taxes against these homestead premises of plaintiff and the others in whose interest he sues, for several years, and had demanded payment of them, and threatened to collect them by suit and sale of such lands, and to assess them in the future, that such action was in contravention of Article IV, § 3, of the Federal Constitution, deprived him and his fellow entrymen of a privilege and immunity secured to them as citizens of the United States, deprived them of property without due process of law, and denied them the equal protection of the laws, all under the Fourteenth Amendment. He prayed for an injunction against the defendants and their successors in office and each of them as taxing authorities of Maricopa County from further assessing said lands, collecting the taxes already assessed, or bringing suit to collect the taxes as delinquent or to sell such interests. After answer and reply, the case was heard on an agreed statement of facts. The District Court dismissed the bill on its merits without opinion. This is a direct appeal from the District Court under § 238 of the Judicial Code, as amended January 28, 1915, c. 22, 38 Stat. 804, because the suit is one involving the construction or application of the Constitution of the United States.
On January 24th last, the cause was submitted to the court by counsel for the appellant upon brief, counsel for appellees not appearing. Since that day, a brief has been filed on behalf of appellees and considered by the court. When the case was called, counsel for appellant submitted a motion, suggesting that all the appellees, county officers of Maricopa County, Arizona, who at the time of bringing, hearing and deciding the suit below were charged with the duty of assessing and collecting taxes therein, had, with exception of the sheriff and one of the three members of the Board of Supervisors, retired from office, and that *222 their successors had been elected and qualified. These successors, the present officers of the county, the appellant asked to have substituted as appellees in this case. The motion was inadvertently granted. The order granting it must be in part vacated.
A suit to enjoin a public officer from enforcing a statute is personal and in the absence of statutory provision for continuing it against his successor, abates upon his death or retirement from office. Pullman Co. v. Croom, 231 U.S. 571. In United States ex rel. Bernardin v. Butterworth, 169 U.S. 600, substitution was refused, although consent was given by the successor in office. This court said (p. 605):
"In view of the inconvenience, of which the present case is a striking instance, occasioned by this state of the law, it would seem desirable that Congress should provide for the difficulty by enacting that, in the case of suits against the heads of departments abating by death or resignation, it should be lawful for the successor in office to be brought into the case by petition, or some other appropriate method."
In response to the suggestion, Congress passed the Act of February 8, 1899, c. 121, 30 Stat. 822, under which successors of United States officers who have been sued may be substituted for them upon proper showing. In Caledonian Coal Co. v. Baker, 196 U.S. 432, 442, it was held that the statute authorized such procedure in the case of a territorial judge appointed under a law of the United States. But no authority exists for the substitution of successors of state officers in such cases. We have examined the statutes of Arizona and find none in them. The Arizona Civil Code, 1913, contains the following:
"Sec. 461. An action shall not abate by the death or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of the death or disability of a party, the court, on *223 motion, may allow the action to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action."
This does not permit the substitution of a successor for a public official sued personally.
In the Butterworth Case, supra, it was sought to justify substitution under an act which read as follows:
"No action, brought or to be brought, in any court of this State shall abate by the death of either of the parties to such action, but upon the death of any defendant, in a case where the action by such death would have abated before this act, the action shall be continued, and the heir, devisee, executor or administrator of the defendant, as the case may require, or other person interested on the part of the defendant, may appear to such action."
This court said (p. 605):
". . . We are unable to perceive that this statute, either in its terms or its spirit, is applicable to cases like the present one. Neither the heir, devisee, executor or administrator of a deceased official would have any legal interest in such a controversy. Nor, in the case of a resignation, could the successor be said to be `a person interested on the part of the defendant.'"
What we have said applies to the motion for substitution so far as it relates to Sam F. Webb, sued as County Treasurer, C.W. Cummins, sued as County Assessor, and L.M. Laney, sued as County Attorney, and the order granting the motion as to them is vacated, the motion is denied and the cause is dismissed as against them without prejudice, of course, to new suits against their successors.
It may not be improper to say that it would promote justice if Congress were to enlarge the scope of the Act *224 of February 8, 1899, so as to permit the substitution of successors for state officers suing or sued in the federal courts, who cease to be officers by retirement or death, upon a sufficient showing in proper cases. Under the present state of the law, an important litigation may be begun and carried through to this court after much effort and expense, only to end in dismissal because, in the necessary time consumed in reaching here, state officials, parties to the action, have retired from office. It is a defect which only legislation can cure.
J.G. Montgomery, county sheriff, still remains as appellee in the case but, as his taxing duties are only connected with the service of process in tax suits, it is doubtful whether, were he the only party here, an injunction against him would give the relief sought. It is not necessary to decide this, however, as will be seen from what follows.
So far as the order already entered substitutes for C.W. Peterson and W.K. Bowen sued as County Supervisors, C.S. Steward and Guy F. Vernon, who have been elected to be their successors, as appellees, it will stand, for the principle to be applied in their case is different. The rule requiring abatement of such suits against officials on their retirement and forbidding substitution of their successors, does not apply when they constitute a board, having a continuing existence. Marshall v. Dye, 231 U.S. 250; Richardson v. McChesney, 218 U.S. 487, 492; Murphy v. Utter, 186 U.S. 95. An examination of the statutes of Arizona as to the composition and duties of this board leaves no doubt that it is a continuing one. A county in Arizona is a body politic and corporate. Section 2388 of the Arizona Civil Code of 1913 provides that "its powers can be exercised only by the board of supervisors or by lawful agents and officers acting under their authority and authority of law." The Board has three members and is vested with very wide and varied powers, acting as a *225 Board. Code, Title 10, c. IV. Its members exercise official duties only as members of the Board, and a quorum of two may act. Code, § 2408. Every two years, either one or two members are elected, but the retiring members hold until their successors are elected and qualified. Code, §§ 2399, 2400. The motion should be granted so far as it asks the substitution in case of the two supervisors, unless it appears that under the averments and prayer of the bill an injunction against the Board of Supervisors alone will not aid the plaintiff. Warner Valley Stock Co. v. Smith, 165 U.S. 28, 35, 36. The bill prays an injunction against the collection of taxes already assessed for each of twelve years and against future assessments. Are the functions of the Board of Supervisors such that an injunction against them would prevent such collection and assessment?
Under the Arizona statutes the procedure in the assessment and collection of taxes is that the county assessor makes the original assessment roll against the owners, and files it with the Board of Supervisors. Code, §§ 4860, 4874. The Supervisors or a majority of them constitute a board of equalization, and revise the assessment roll and send it to the State Board of Equalization. Upon its return from the state board, § 4892 provides that the Board of Supervisors shall then proceed to assess taxes according to the valuation specified in the assessment roll, and upon completion of such assessment, the chairman of the Board of Supervisors shall annex to the roll a warrant commanding the county treasurer to collect from the several persons named in the roll the total taxes set opposite their respective names.
It is the duty of the Board of Supervisors to levy the taxes, to direct all suits to which the county is a party, to supervise the official conduct of all county officials charged with assessing and collecting the public revenues, to see that they discharge their duties faithfully, to direct *226 prosecutions for delinquencies (Code, § 2418), to receive report of the treasurer and ex officio tax collector each year of delinquent lists of real estate taxes, to examine and compare them, and to correct them if any property therein reported is not subject to taxation, and to return them to the treasurer for collection (Code, §§ 4909, 4912), and to exercise the same authority with respect to the "back tax book" for previous years.
In view of these various duties of the Board of Supervisors not only in respect of the levying of future assessments but in the matter of correction and collection of delinquent taxes, it is clear that an injunction restraining the Board from future assessments on the lands in question, or from taking any steps to collect the back taxes, would be substantially to secure the relief the plaintiff seeks.
Coming now to the merits of the controversy, the point at issue is whether when the plaintiff and his fellows completed all that they had to do under the original Homestead Act to perfect their right to a patent, they had an equity against the Government which was taxable by the Territory of Arizona and its successor the State. On the pleadings and the agreed statement of facts, it is admitted that the plaintiff and his associates performed all the conditions under the Homestead Act and that they duly took all the preliminary steps enjoined under the Reclamation Act; but it is averred, and not denied in the answer of the defendants, that a number of important steps remained to be taken by plaintiff and those for whom he sues in perfecting their claims under the Reclamation Act at the times these taxes were levied, and in the case of the plaintiff and some of the class, at the time of bringing this suit.
Under the Homestead Act, Rev. Stats., § 2291, every person making a homestead entry was required among other things to establish a residence upon the tract of *227 land entered and maintain a residence thereon and cultivate it for a period of not less than five years, and to submit final proof thereof upon which patent ultimately issued in due course, within seven years after the date of entry. The act was amended June 6, 1912, c. 153, 37 Stat. 123, to reduce residence to three years. Under the third section of the Reclamation Act, 32 Stat. 388, the Secretary of the Interior is authorized to withdraw from entry, except under the homestead laws, any public lands believed to be susceptible of irrigation from the works he is about to initiate, and all homestead entries on such lands are made subject to all the provisions, limitations, charges, terms and conditions of the Reclamation Act. The act further provides (§ 5) that the entryman upon lands to be irrigated from the government works shall, in addition to compliance with the homestead laws, reclaim at least half of the total irrigable area of his entry for agricultural purposes, and before receiving a patent for the lands covered by his entry shall pay to the Government the charges apportioned against such tract as contribution to the cost of the works. The Secretary is authorized to fix a limit of area of land per entry representing the acreage which may reasonably support a family. The Secretary is given full power in § 10 to make rules and regulations needed to carry the act into effect. He has done so. Under the act and the regulations contained in the General Reclamation Circular, each entryman is required to conform his entry to a "farm unit" established by the Secretary within each reclamation project and this has forced many relinquishments and cancellations of surplus land in homestead entries, leading to remedial legislation hereafter mentioned. The entryman is required to clear the land entered of brush and other encumbrances, to provide the same with lateral ditches for its effective irrigation, to grade the same and put it into proper condition for crop growth, and to plant, water, *228 and cultivate, during the two years next preceding the time of filing his final affidavit, half of the irrigable area of his entry and to grow satisfactory crops thereon, i.e., crops equal to crops raised upon lands similarly situated. Upon final proof, a final certificate is issued to the entryman showing that he has performed all conditions precedent to acquiring the title. The patent which is the formal grant follows at the convenience of the Land Office and often is delayed. By the Reclamation Act, homestead reclamation entrymen were obliged to pay all water charges before a patent would issue, but the effect of subsequent legislation, in Acts of August 9, 1912, c. 280, 37 Stat. 267, of August 13, 1914, c. 247, 38 Stat. 686, and of February 15, 1917, c. 71, 39 Stat. 920, is to divide the water charges into instalments of varying percentages, falling due during a period of twenty years, from and after public notice by the Government that the water is ready for use, and to allow a patent upon payment of all instalments due at time of submitting final proof. If proof is satisfactory, a patent then issues, conveying a full legal title but reserving a prior lien to the Government, superior to all others, for all instalments unpaid.
The rule established by the decisions of this court is that, by virtue of its sovereignty and the constitutional power of Congress to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States, no State can tax the property of the United States within its limits. This was recognized and enforced by the Enabling Act of June 20, 1910, c. 310, 36 Stat. 557, under which Arizona was, on February 14, 1912, admitted to the Union, for that act contained an express declaration that lands and property belonging to the United States or reserved for its use were exempted from taxation. Van Brocklin v. Tennessee, 117 U.S. 151, 168; Wisconsin Central R.R. Co. v. Price County, 133 U.S. 496, 504. An exception to this principle, *229 or rather its non-application, is recognized where the Government has by final certificate parted with the equitable title to a person subject to state taxation and retains only the legal title by its delay in issuing the patent. Not until the equitable title passes can the State tax the entryman, except in the case of mining claims (the reason for which we shall presently consider), and in cases in which express authority to tax is given in the statute. Bothwell v. Bingham County, 237 U.S. 642, 647; Sargent v. Herrick, 221 U.S. 404, 407; Stearns v. Minnesota, 179 U.S. 223, 251; Northern Pacific Ry. Co. v. Myers, 172 U.S. 589; Hussman v. Durham, 165 U.S. 144, 147, 150; Wisconsin Central R.R. Co. v. Price County, supra; Northern Pacific R.R. Co. v. Traill County, 115 U.S. 600; Colorado Co. v. Commissioners, 95 U.S. 259; Railway Co. v. McShane, 22 Wall. 444; Railway Co. v. Prescott, 16 Wall. 603.
The county authorities in this case were in error in supposing that an equitable title passed from the Government to the entrymen here, when the latter had fulfilled the requirements of the Homestead Act. Had their entries been controlled solely by that act, they would have been right. But, as we have seen, their entries were made under that act as supplemented and qualified by the Reclamation Act; and the latter expressly entails on such entrymen additional conditions which must be performed before an equitable title or a right to a patent is secured.
We are cited by counsel for appellees to an opinion of Judge Dietrich of the District Court of Idaho in a suit brought by the United States to enjoin Canyon County, Idaho, and its taxing officers from taxing lands or the interests of settlers therein in the Boise Reclamation project. United States v. Canyon County, 232 Fed. 985. The case involved two classes of lands. The first was of lands in which a patent had issued, conveying a fee in the land subject to a lien of the United States, superior to all *230 others, for future instalments of water rents. The second was of lands in which the conditions of the original homestead law had been complied with, but the entrymen had not paid in full for their water rights and they had not brought the requisite acreage under cultivation and irrigation. The court held that the interests of the patentees in the first, and of the entrymen in the second class of lands were taxable by the State. In the first ruling, we concur. The patent vested the full legal title in the entrymen. The fact that a lien was reserved on the face of the patent prior in right to all other liens for instalments of water charges to fall due in the future did not prevent this, and the giving patents indicated an intention on the part of the Government that it should be land of the entrymen and of course it became taxable as such. Baltimore Shipbuilding & Dry Dock Co. v. Baltimore, 195 U.S. 375.
With the second ruling, in which the District Court was sustained by a decision of the Supreme Court of Idaho, Cheney v. Minidoka County, 26 Id. 471, we can not agree. We can not reconcile it with the cases in this court which we have cited above. The District Judge relies on the Act of June 23, 1910, c. 357, 36 Stat. 592, which permits entrymen within reclamation projects, after having made satisfactory proof of residence, improvement and cultivation for the period originally required under the homestead law, to assign such entries or any part thereof to other persons. Such assignees, upon subsequently submitting proof of the reclamation of the lands and upon payment of the charges apportioned against the same as provided in the Reclamation Act may receive a patent, "Provided, That all assignments made under the provisions of this act shall be subject to the limitations, charges, terms, and conditions of the reclamation Act." By circular of the Secretary of the Interior, the entryman may mortgage his interest also. The argument is that this puts such an interest as the entryman has in the lands *231 in the same category as mining claims which have always been taxable. Elder v. Wood, 208 U.S. 226. We do not think that mining claims present a convincing analogy. The basis of the mining interest is discovery and location. These give full opportunity to the locator of the claim to take out the mineral, and, since the beginning, this right and interest never has been dependent for its enjoyment on patent, and so it has been taxable. Forbes v. Gracey, 94 U.S. 762. The rule has always been different in respect to other public lands as the numerous decisions of this court cited above show.
Even before the statute of 1910, a homesteader could mortgage his interest to help him in performing the conditions of earning his patent. Mudgett v. Dubuque & Sioux City R.R. Co., 8 L.D. 243. The care with which the Government has thus framed its land policy to protect and encourage the homesteader is shown further in Ruddy v. Rossi, 248 U.S. 104, 105. The Government incurs heavy liability in providing water for these lands. It relies on the entrymen to reclaim them, thus finally achieving its sole object of adding arid tracts to the productive area of the country. In pursuit of this purpose, it has found the requirement that the entryman shall pay all his apportioned cost of the irrigation work before he gets title, too burdensome, and, as we have seen, the sum has been spread in instalments over twenty years, and his title is given him after he has reclaimed the land and paid the few early instalments due at that time. The Act of 1910 does not purport to subject these lands to taxation while the title is as yet unearned and its terms show that it is not intended to permit anything beyond what fairly falls within its express provisions. Its evident and sole purpose was to enable entrymen whose entries were cut down in area by the Secretary of the Interior in prescribing farm units to dispose of their surplus to others who would be able to hold it, fulfill conditions and secure a *232 patent, and avoid a relinquishment or cancellation of the surplus which had been the consequence before the act. This is apparent from an amendment to the Act of 1910 passed May 8, 1916, c. 114, 39 Stat. 65, and from the Report of the Committee or Irrigation of Arid Lands of the House of Representatives of the 64th Congress, 1st session, No. 127, upon which the amendment was adopted. To construe this remedial legislation, including the Act of 1910, which is only intended to lighten the task of the entryman in reclaiming the land and acquiring title, so as to impose on him the new burden of state taxation, is contrary to its plain policy. We think, therefore, that the reason for the rule, making the acquisition of the equitable title the line between non-taxability and taxability, is stronger in case of reclamation homestead entrymen than in the instances where, before the Reclamation Act, it always applied. Moreover, the confusion caused in the past by the taxation, when specifically permitted, of indefinite and inchoate interests of the beneficiaries of government land grants, should prevent an inference of the congressional intention to depart from the rule requiring an equitable title in the entryman before state taxation, unless a purpose to permit earlier taxation is express or strongly implied.
It is argued that it is not government property which is sought to be taxed here before final certificate, but only the interest of the entryman. In the case at bar, the taxes were in the first instance assessed against the land, but later the Board of Supervisors changed the form of the assessment so as to insert the word "equity" in the record. The power of the Supervisors, under the Arizona statutes, to order such a change in past assessments, is challenged. We do not think it necessary to decide this. It is enough to say that the entrymen did not have the equitable title until they received the final certificate and their interest in the Government's land, until that issued, *233 was, for the reasons given, not taxable. Whether an interest like that of the entrymen in land not belonging to the Government would be taxable property, we have no occasion to consider.
Of the taxes here complained of, those from 1907 until 1916 were levied before the Secretary of the Interior, in January, 1917, had fixed for this project a farm unit of 40 acres to which each entry must conform. Certainly until the area which the entryman could receive was ascertained, no equitable title could pass.
After the farm unit was established, the entryman had two years in which to fulfil the requisites of the statute. One of these, and as important as any, was the filing of the final affidavit showing that he had performed the conditions precedent to getting a patent, which he had to present to the land office for approval and final certificate, which, as we have said, gave him equitable title. From an exhibit to the bill, the accuracy of which is not controverted, it appears that of the class of forty-nine entrymen for whom the plaintiff sues, twenty-four received a final certificate in 1919, and that twenty-five, including the plaintiff, had not received a final certificate when the bill was filed. As to the former, assessment of all taxes assessed against them for the years 1907 to 1918, inclusive, was illegal, and the defendants, J.G. Montgomery, Sheriff, and J.W. Bradshaw, Guy F. Vernon and C.S. Steward, members of the Board of Supervisors, should be enjoined from taking any steps to enforce collection. As to the latter, collection of all taxes assessed prior to filing the bill, and all future assessments for taxes on their interests as entrymen until final certificate shall have been issued to them by the United States Government, will be illegal and the foregoing defendants should be enjoined accordingly.
The decree of the District Court is reversed, with directions to enter a decree in conformity with this opinion.
Reversed.


228 U.S. 319 (1913)
TEXAS & PACIFIC RAILWAY COMPANY
v.
HARVEY.
No. 204.
Supreme Court of United States.
Argued March 20, 1913.
Decided April 14, 1913.
ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.
Mr. F.H. Prendergast, with whom Mr. W.L. Hall was on the brief, for plaintiff in error.
Mr. Cone Johnson, Mr. Jas. M. Edwards and Mr. S.P, Jones, for defendant in error, submitted.
*320 MR. JUSTICE DAY delivered the opinion of the court.
This case comes to this court from the Circuit Court of Appeals for the Fifth Circuit because The Texas & Pacific Railway Company is a Federal corporation. The action was brought by Amanda Harvey to recover for the death of her son, W.S. Harvey, occasioned by the negligence of the Railway Company while he was in its employ. The judgment against the Railway Company entered by the United States Circuit Court for the Eastern District of Texas, to which court the case had been removed, was affirmed by the Circuit Court of Appeals.
The Railway Company maintained a roundhouse at Marshall, Texas, which was constructed in a crescent form, having near the entrance a turntable. Numerous tracks coming from the roundhouse converged at the turntable, the narrowest point within the roundhouse being at the entrance. A number of posts, serving to support the roof, were located at the entrance to the roundhouse, and the locomotives, in going into and coming from the roundhouse, passed between such posts, a large locomotive, the testimony tends to show, passing within four or five inches of the posts. It appears that on the day of the injury one McGilvery served as hostler in and about the roundhouse; that Harvey, the deceased, was employed as a hostler's helper, the regular helper of one Rix, and that one George was also a hostler's helper regularly of one Adams, but on that day serving with McGilvery, who was taking the place of Adams in his temporary absence. It also appeared that a hostler took the place of an engineer and that it was customary for a hostler's helper to get upon an engine, to give and receive signals and for that purpose to look out of the cab window, to throw and set switches, to accompany the engine to the coal chute and water tank, to supply it with coal and water with a view to its going upon the road, and to otherwise *321 assist the hostler in his work; and, further, that frequently one helper would assist another helper because the appliances at the chute were heavy and difficult for one man to operate. On the day of the accident, the testimony discloses, Harvey got upon the engine and took a seat in the cab window on the left side, his hips protruding somewhat over the sill; and George took a similar position, beside Harvey and on the latter's right, on the same side of the engine. McGilvery got upon the engine on the other side, where he could not be seen by Harvey because of the boiler. All three having got upon the engine to coal and otherwise prepare it for the road, McGilvery started the engine out of the roundhouse. It had gone but a few feet when Harvey was crushed between the post and the casing of the cab window in such manner that he was fatally injured and shortly died. George, sitting in the same posture, but less exposed, passed the post unhurt.
The negligence charged is the failure of the Railway Company to provide a safe place to work and that the posts were so placed as to make it dangerous to use the locomotive in passing them. The question of the Railway Company's negligence was submitted to the jury in a charge to which no objection in this respect was taken, and the case is brought here because of the rulings made in the trial court and affirmed in the Circuit Court of Appeals concerning the defenses, on the Railway Company's behalf, of assumed risk and contributory negligence.
At the common law a servant assumes the ordinary risks of his employment, but he is not obliged to pass upon the methods chosen by his employer in discharging the latter's duty to provide suitable appliances and a safe place to work, and he does not assume the risk of the employer's negligence in performing such duty. This rule is subject to the exception that, where a defect is known to the employe or is so patent as to be readily observed by him, he cannot continue to use the defective *322 appliance, in the face of knowledge and without objection, without himself assuming the hazard incident to such a situation. If a defect is so plainly observable that the servant may be presumed to know its existence and he continues in the master's employment without objection, he is said to have made his election to thus continue, notwithstanding the master's neglect, and in such a case he cannot recover. Choctaw, Oklahoma &c. R.R. Co. v. McDade, 191 U.S. 64; Schlemmer v. Buffalo &c. Ry. Co., 220 U.S. 590, 596.
In Texas, however, where this accident happened, the rule of assumed risk has been qualified by statute. The statute of April 24, 1905, Gen. Laws 1905, c. 163, p. 386, is as follows:
"That in any suit against a person, corporation or receiver operating a railroad or street railway for damages for the death or personal injury of an employe or servant, caused by the wrong or negligence of such person, corporation or receiver, the plea of assumed risk of the deceased or injured employe where the ground of the plea is knowledge or means of knowledge of the defect and danger which caused the injury or death shall not be available in the following cases.

* * * * * * * *
"Second. Where a person of ordinary care would have continued in the service with the knowledge of the defect and danger and in such case it shall not be necessary that the servant or employe give notice of the defect as provided in subdivision 1 hereof."
The above statute was construed in Houston & Texas Central R.R. Co. v. Alexander, 102 Texas, 497. In that case the Supreme Court of Texas held that the effect of the act was "to deny to the railroad company the defense of assumed risk in case `the defect or danger' which caused the injury was such that a person of ordinary prudence *323 under like circumstances `would have continued in the service.'" In concluding its discussion of the statute the court said (p. 505):
"The purpose of the law under consideration was to secure the servant against the injustice of being denied reparation for injuries which he received while in the faithful performance of his duties and arising out of the circumstances and conditions over which he could not possibly have control, and under circumstances which would authorize him in the exercise of ordinary care to continue in the service by using the defective machinery or implements."
This view of the statute was given in the charge of the trial court in the present case, and the jury was also instructed as follows:
"Then on the question of assumed risk only, you will determine whether or not a man of ordinary prudence and caution would have continued in the employ of the defendant knowing the position of the post and the circumstances there  -  that is if that post was too close to the track, it was open and visible to anybody using the track, and its proximity to the track could be seen. The question then is, whether or not under subdivision two of this act a person of ordinary care would have continued in the service with the knowledge of the defect and danger. If you find from the evidence that the post was too close to the track and that the danger was obvious, then you will determine whether or not Mr. Harvey in continuing in the employ of the defendant, exercised the care that a person of ordinary prudence would have exercised under the circumstances  -  that is, whether a person of ordinary prudence would have continued in the service. If you find that a person of ordinary care would have continued in the service under those circumstances, then you are charged that he would not assume the risk of injury. But, if you find from the evidence that a person of ordinary *324 care would not have continued in the service of the defendant, then you are charged that he would assume the risk of injury, and could not recover. That is a question for you to determine from all the evidence."
On the branch of the case dealing with assumption of risk we think the charge of the trial court was as favorable to the Railroad Company as it could properly have been under the statute. If the doctrine of assumed risk applied to this case, it was because the alleged defect was so palpable and visible that Harvey was presumed to know of it, although there was no direct proof upon that subject, and, by continuing to work, to have taken upon himself the hazard of injury from that source. The Texas statute, as we have said, qualified the rule of assumed risk by limiting it to cases where a man of ordinary prudence would not continue to work with such knowledge, real or imputed.
The question principally argued concerns the alleged contributory negligence of the deceased under the circumstances shown. It has often been held in this court that ordinarily negligence or contributory negligence is not a question of law but of fact, to be settled by the finding of the jury. Where there is uncertainty as to the existence of negligence or contributory negligence, whether such uncertainty arises from a conflict of testimony or because, the facts being undisputed, fairminded men might honestly draw different conclusions therefrom, the question is not one of law. Richmond & Danville Railroad Co. v. Powers, 149 U.S. 43, 45, and cases there cited.
The charge of the court as to contributory negligence was distinctly and clearly that the plaintiff could not recover if the negligence of the deceased contributed to the injury resulting in his death, and at the close of the charge the court gave a special request, made by the defendant, in which the jury was again told that the plaintiff could not recover if Harvey at the time was not acting with *325 the care of an ordinarily prudent man when he protruded his hips beyond the window in the manner stated.
There is little dispute as to the facts in this case. We have stated them as the evidence tends to show them. Can it be said that the inference of negligence is so plain that all fairminded men would be compelled to that conclusion upon a consideration of the facts? The appellate court is not a jury for the trial of a case, nor do we have the powers of a court to grant a new trial, which in the Federal practice is a matter resting in the sound discretion of the trial court. The question and the sole question is, Was the contributory negligence so evident, applying the rules we have already stated, that it became a question of law requiring the court to take the case from the jury by direction to return a verdict for the Railway Company because of the contributory negligence of the deceased? We are not prepared to answer this question in the affirmative. Under all the circumstances, as we have related them, we cannot say, as an appellate court, that the trial court was wrong in leaving the question to the jury under the fair and full instructions given.
The other errors assigned concern the requests of the defendant below for a peremptory instruction in its favor because Harvey had placed himself in the window where none of his duties required him to be; but the record discloses that it was customary for a hostler's helper to get upon an engine and to look out of the cab window for the reasons we have stated, and for one helper to lend aid to another. We do not think that the testimony shows that Harvey was not in the line of his duties when he got upon the engine or was a mere volunteer in going to help George in his work under the circumstances.
We find no error in the record requiring the reversal of the judgment of the Circuit Court of Appeals, and it is therefore
Affirmed.


409 U.S. 801
93 S.Ct. 24
34 L.Ed.2d 14
The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY et  al., applicants,v.The WICHITA BOARD OF TRADE et al.No. A-1320.
Supreme Court of the United States
July 7, 1972

1
On consideration of the appellants' application for stay, the appellees' reply to the application, and the affidavits and memoranda filed in support of the application and reply, it is ordered:

2
(1) That, subject to the condition set forth in paragraph 2 herein, the judgment of the United States District Court for the District of Kansas entered in this matter on June 8, 1972, be and hereby is stayed pending a final determination of the appeal by this Court.

3
(2) That, as a condition of the foregoing stay, each railroad collecting in-transit grain inspection charges under the challenged tariffs shall immediately take steps, including publication of appropriate provisions in applicable tariffs, to do the following:

4
(a) keep accurate accounts in detail of all amounts hereafter      received during the existence of the stay by reason of      in-transit grain inspection charges, specifying by whom and      in whose behalf such amounts are paid; and

5
(b) in the event the order suspending the charges is affirmed      by this Court, refund (with interest) of such amounts to persons in whose behalf such amounts were      paid, without the necessity for such persons to make      applications for refunds. In the event this Court's action      should be other than in affirmance of the results reached by      the district court, this Court may make such further order      concerning the disposition of the aforesaid amounts as the      Court may deem appropriate.


73 U.S. 101 (____)
6 Wall. 101
UNITED STATES
v.
ADAMS.
SAME
v.
JOHNSON.
SAME
v.
CLARK.
Supreme Court of United States.

*105 Messrs. Carlisle, Corwine, and Wills, in support of the motion to dismiss the appeals of Adams and Johnson.
Mr. Norton, Solicitor of the Court of Claims, contra.
*106 *107 Mr. Justice MILLER delivered the opinion of the court.
Motions are made in the case of United States v. Adams, and of the Same v. Johnson, to dismiss the appeals, upon the ground that they were not taken within the ninety days to which the act of Congress limits the right of appealing from the judgments and decrees of that court.
The fifth section of the act of March 3, 1863, under which the proceedings in appeal were had, enacts that "either party may appeal to the Supreme Court of the United States from any final judgment or decree which may hereafter be rendered in any case by said court, wherein the amount in controversy exceeds three thousand dollars, under such regulations as said Supreme Court may direct: Provided, that such appeal shall be taken within ninety days after the rendition of such judgment."
This language implies that taking an appeal is a matter of right, and is something which the party as distinguished from court may do. When the court has rendered its judgment "either party may appeal." That is, has the right to appeal, and may exercise that right by his own volition. The court cannot prevent it, nor is the right dependent upon any judicial discretion.
So also the language of the proviso is to the same purport. The appeal is to be taken within ninety days, not granted, or allowed, or permitted, but taken  -  a word which implies action on the part of the appellant alone. So that, whatever the proceeding may be which constitutes appealing, or taking an appeal, it must be something which the party can do; and it would seem that no regulation of the Supreme Court, nor any judicial discretion of the Court of Claims, can deprive him of the right, though the former may frame appropriate rules in accordance with which the right must be exercised.[*]
*108 We consider the paper filed by the solicitor in the office of the clerk of the court as sufficient in form to indicate the intention to exercise this right. It is addressed to the court, refers properly to the case, claims an appeal, and calls upon the court to take the action which the rules prescribed by the Supreme Court require of it.
But it is claimed that the rule so prescribed has not been complied with, and therefore the appeal is not taken within time. The third rule, the one here referred to, is this: "In all cases an order of allowance of appeal by the Court of Claims, or by the chief justice thereof in vacation, is essential, and the limitation of time for granting such appeal shall cease to run from the time an application is made for the allowance of appeal."
The language of the rule would have been more technically accurate if the word "taking" had been used instead of "granting," but the latter word is used in the rule to express the idea conveyed by the former in the statute.
To understand why the Supreme Court required an allowance of the appeal by the Court of Claims it is necessary to consider the two rules which precede this. A statute passed a year or two after the one we have been considering gave the right of appeal in cases where judgments had been rendered long previous to its passage. In framing rules upon this subject the Supreme Court determined that these rules should be so drawn that only questions of law could be brought here for review. The first rule provided that the party desiring to appeal, in cases decided before the rules were made, should present his petition to the Court of Claims, setting forth the questions of law decided against him which he desired to have reviewed; and that court was required to certify what had been its rulings on those questions. By the second rule the court was required, in all appealable cases thereafter decided, to make a finding of facts, and of their conclusions of law thereon, and make it a part of the record.
It is obvious that in both of these classes of cases it was proper that the attention of the court should be called to the *109 taking of an appeal, and that it should not be treated as perfected until that court had prepared the statement of facts, or the statement of its rulings on questions of law which these rules prescribed. If something of this kind had not been required, the appeal might have been taken and the record filed in this court before the rule had been complied with.
But that the delay in doing this might not prejudice the party desiring to appeal, the rule expressly provides that the statute of limitations shall cease to run from the time the application is made. In other words, the framers of the rule, treating the appeal as taken within the meaning of the statute when the application is made for its allowance, provide that the delay in making out a proper statement of facts and judicial rulings, and then allowing the appeal (which C.J. Taney says, in Hudgins v. Kemp, "is merely an authority to the clerk to transmit the record"), shall not operate to defeat the appeal.
Much minute criticism has been expended on the question whether the adjournment of the court from May to June was a vacation within the meaning of the rule, and whether the application should have been made to the court or to the chief justice. The rule says, the allowance may be made by the court, or, if there is a vacation, by the chief justice, but it does not prescribe the form of the application, or how or to whom it shall be made. We think that whether done in vacation or in session, or during a temporary recess, the rule adopted by that court of requiring the application to be made by filing it with the clerk, is a very proper one.
We are therefore of opinion that the filing of this paper was taking the appeal, and that the delay in the subsequent proceeding to render it effectual do not touch its validity.
Another ground for the motion to dismiss these cases is, that the statement of facts found by the court, and their conclusions of law thereon, are not a sufficient compliance with the rule of the Supreme Court on that subject. It is said that the statement of facts is a mere recital of the evidence, and not the results of evidence as found by the court.
*110 Conceding for the present that these records are fairly liable to the objection made, does it follow that for this reason the appeals should be dismissed?
In discussing the first ground on which the dismissal of these cases is claimed, we have seen that an appeal is a right given to the party by the statute, of which the Court of Claims cannot deprive him. It would be a violation of this principle if this court should refuse to consider his appeal, because the Court of Claims has erred in its attempt to comply with a rule of this court prescribing the character of the record to be sent here.
If the Court of Claims had made no attempt to comply with this part of the rule, we do not perceive how that would deprive this court of its jurisdiction of the case, or the appellant of his right to be heard. In such case, there is undoubtedly in this court, as in all appellate courts, a means of enforcing compliance with the rule, without permitting its jurisdiction, or the rights of appellant, to be defeated. But there is no such case here. The Court of Claims has made a finding of facts, and conclusions of law, and has shown its intention to comply in good faith with the rule of this court. Whether it be a sufficient compliance or not, is a question which does not affect the jurisdiction of this court, and is no ground for dismissal of the cases. The motions to dismiss are therefore overruled.
The rule above referred to, however, was made for the protection of this court, as well as to secure a finding of facts, by a tribunal which must of necessity inquire into them fully, and which, having ample time, and being otherwise every way competent, may be relied on to find them truly. In consequence of the suggestions of counsel in these cases, and in several others, said to be in the same category, we have examined into the statement of facts certified to us, to see if the rule is complied with. In all that we have examined, except the two named at the head of this case,[*] the statement is free from objection. In the case of United *111 States v. Adams, the propositions of fact are stated more in extenso than is either necessary or desirable, and are subdivided into a greater number of distinct propositions than are useful or conducive to clearness.
There are also certain acts and joint resolutions of Congress found as facts, of which this court must take judicial notice, which are, therefore, in no sense, facts to be found.
But after all, there is within a reasonable compass, and fairly stated, the main ultimate propositions of fact, on which this court can determine the principles of law, which must control the case.
But in the case of United States v. Johnson, it is different. We have first a detailed history of Johnson's transactions in settling on certain land, which is the foundation of his claim, with no attempt to deduce from this recital any ultimate fact, to which a proposition of law can be applied. This is followed by from fifteen to twenty affidavits and letters, given in full, from various officers in the department of the public lands, and other persons. What facts these letters and affidavits are intended to establish, we have not stopped to inquire, because it was the object of the rule to impose upon the Court of Claims the duty of drawing the inferences and conclusions which such documents are supposed to establish, or to decide that they do not establish them. The statement in this case is, in this respect, a reproduction of the finding which we rejected in the case of Burr v. The Des Moines Navigation Co.,[*] to which this court refers in the rules as containing a judicial exposition of the principles on which they are founded.
No doubt it is often difficult to draw the line between a mere recital of the evidence produced in the case, and a finding of the facts which that evidence establishes; and where the statement certified by the Court of Claims is reasonably sufficient, we hope we shall not be found captious. But in the case we have mentioned, there is such a wide departure from the principle which lies at the foundation of the rule, *112 that while we shall retain jurisdiction of the case, the record will be remanded to the Court of Claims, with directions to return a finding of the facts, in accordance with the rule.
These principles also dispose of the motion for certiorari in the case of Clark et al. v. United States. The motion there is designed to require the Court of Claims to make a more extended statement of the evidence on which they find, "that the allegation of fraud or mistake in the concoction of the written agreement is not sustained by the evidence in the case."
This is precisely the character of finding which the rule of this court was intended to produce. The existence of the fraud or mistake set up in the pleading is one of the ultimate facts to which the law of the case must be applied, in rendering a judgment, and this court does not purpose to go behind the finding of the Court of Claims on that subject. To do so would require an examination of evidence, and a comparison of the weight to be attached to each separate piece of testimony, and the drawing of inferences from the whole, which is the peculiar province of a jury, and which, by our rule, we intended to exclude from the consideration of this court, by making such finding by the Court of Claims conclusive. The motion in that case is, therefore, overruled.
MOTIONS OVERRULED in all the cases, but in the second case the record remanded with directions to make a new finding of facts in accordance with the rules of court on the subject.
NOTES
[*]  Hudgins et al. v. Kemp, 18 Howard, 530; Dos Hermanos, 10 Wheaton, 306; The Enterprise, 2 Curtis C.C. 317.
[*]  Supra, p. 101.
[*]  1 Wallace, 102.