(dissenting in part).
I concur in the majority opinion as to W. L. Gearhart, J. H. McGlone, Mrs. Click and Estill Caudill but disagree as to Miss James, without reaching the question of whether KRS 160.190 authorizes the filling of vacancies by less than a quorum of the local board
At the time J. E. Gearhart resigned, not only were all five members of the .board of education under formal charges directed to their removal, but the special commissioner had made a finding of their guilt and recommended the removal of all. Although the formal affixation of their guilt awaited the confirming action of the State Board of Education, at this stage the presumption was great. To say that one of them could then resign so that the other four might appoint a new member, who in turn could appoint four more members upon their removal, would give legitimacy to a patent subterfuge. Courts are not obliged, and do not have the right, to.be blind to reality. *674The facts of this case speak for themselves. My opinion is that sound public policy prohibited the appointment of a new member by the four remaining members of the board at a time when the charges against them were -pending before the State Board, and that the appointment of Miss James was void. Therefore, I would sustain the ouster order as to her, simply on the ground that the State Board had the right to'recognize that her purported appointment under these circumstances was a nullity.