(dissenting).
The Marion County Board of Education discontinued the Bradfordsville High School in 1954. That order precipitated this action. The principal question involved throughout this litigation has been whether the students in the eastern half of Marion County should have equal educational opportunities with the students in the western half of the county. Unfortunately, the religious issue has been injected, but it really has no part in the consideration of the case on the merits of the above stated question. Likewise, the Lebanon City School District has intervened in a problem to which it was not originally a party.
This matter has been thoroughly considered over a long period of .time. In a unanimous opinion rendered June 22, 1956, the action of the Marion County Board of Education in closing the Bradfordsville High School “without providing equal and uniform educational opportunities for children living in the eastern section of the county with those who live in the western part of the county” was held to be “clearly arbitrary, discriminatory and in violation of KRS 158.010.” It was condemned as a violation of Section 183 of the Kentucky Constitution. Wooley v. Spalding, Ky., 293 S.W.2d 563. This matter was reconsidered on petition for rehearing, which was denied October 5, 1956, by a unanimous vote.
In that opinion the circuit court was directed to order the Marion County Board and its superintendent “to re-establish, as soon as practicable, a high school system that will afford all children in Marion County equal educational opportunities.” As set forth in the majority opinion, this could be accomplished by maintaining one centrally located high school or two regional high schools.
This matter was again considered in Spalding v. Wooley, Ky., 309 S.W.2d 42, in a unanimous opinion rendered on November 15, 1957. It is summed up in this paragraph, to-wit:
“Our former opinion gave the county board of education a choice between two alternatives. The board did not choose either one. Accordingly, we think it was within the power of the circuit court to make the choice for the board, as the court did in directing the establishment of a single, centrally located high school.”
The effect of that decision was to reaffirm the first decision of the Court and to reject a suggested plan similar to the one now approved in the majority opinion. This decision was fully reconsidered and petition for rehearing was denied unanimously on February 7, 1958.
*328This matter was presented again on appeal, and by unanimous vote in an opinion .rendered on June 22, 1962, the previous decisions were upheld. The history of this litigation was fully reviewed therein. It is a petition for rehearing filed on that opinion that has now been sustained and a new ■majority opinion rendered by a four to three vote. Since the origin of this litigation in 1954, this matter has been considered by this Court on five separate occasions prior to the four to three vote by which the petition for rehearing was sustained. During that period ten judges have participated in the deliberations and have .voted in favor of the previous opinions. ,To put it another way, those ten judges have cast a total accumulation of thirty-five votes, without a dissent, in favor of the first three opinions. By adding the three dissenting votes against the majority opinion, the score now stands thirty-eight to four in favor of the original holding as opposed to the majority opinion.
Throughout this litigation there has been no bona fide effort to carry out the original mandate of ⅛⅛ Court by the common sense method of re-establishing a high school at Bradfordsville where there has been a •school accessible by paved roads from all of the eastern part of Marion County. The student population to support such 'school is ample unless transported elsewhere by appellees. Instead', the appellees have ignored this very practical solution of the problem created by them. The problem thus resolves itself into one of whether this Court will enforce its mandate or will permit the Marion County Board of Education to sidestep it with a good stiff arm (to use football terms) and go on its way.
In addition to this disturbing aspect of the case, the majority opinion ignores the law of the case rule, which has had a firm place in the law for many years. If the majority opinion is permitted to stand, it will destroy the stabilizing effect of the law of the case rule, and it will become a rule of convenience with little authority and without respect. It will indeed be a sad day for the Court when it removes this backbone from the body of the law. Respect for the Court and its decisions prompt me to write this dissent.
I thought the original decision in this case was sound. I am still of that opinion and, therefore, cannot agree with the majority opinion.