dissenting.
Respectfully, I dissent.
This decision is in conflict with axioms so basic as to mortify at the need for elaboration.
The judgment of the trial court in Dolan v. Land was entered October 27, 1982. It was affirmed on appeal in pertinent part by our decision finally entered May 10, 1984, found in 667 S.W.2d 684. It is the law of the case.
*831Paragraph 6 of the final judgment of the trial court from which the appeal was taken in Dolan v. Land, supra, states:
“6. That the plaintiffs recover from the defendant, Lones Taulbee, Sheriff, Fa-yette County, such part of the taxes paid to him in such capacity for the taxable year 1981 based upon said void assessments that are in excess of the taxes that would be due and owing based upon the assessed value of said property for the taxable year 1980.”
It should be beyond debate that this paragraph establishes the right to a refund. Thereafter, the appeal only challenged the trial court’s decision on whether the method of assessment employed by the PYA was unconstitutional (which was affirmed), but it did not challenge the trial court’s decision and judgment that the plaintiffs are entitled to a refund.
Further, the Brief for the Appellant, Board of Education of Fayette County, Kentucky, in the present case concedes that the “appellant does not contest the refund” of the 1981 school taxes paid by the six “individual appellees” who “were actually parties in the 1981 case.” Despite this concession, the majority opinion denies these six, along with the remainder of the class, the right their opponent has conceded.
As to the remainder of the class, the affected landowners were certified as a class, and here once again no appeal was taken from the trial court’s decision. Thus in 1982 the class was certified and in that earlier case the remedy provided in the judgment was applied to all members of the class. Whatever happened to the es-toppel by judgment rule? Where has the previous judgment disappeared? Who won and who lost in the previous case?
This case is governed by principles recognized in Salmon Corp. v. Ky. Board of Tax Appeals, Ky., 426 S.W.2d 473 (1968). In Salmon Corp., the issue was whether the Superintendent of Schools of Woodford County was an indispensable party to a court suit challenging the validity of the taxpayer’s ad valorem assessment. We held, in pertinent part:
“We conclude that the interests of the Woodford County tax authorities are merged, so to speak, in the rulings of the Department of Revenue and the Board of Tax Appeals, and that the latter two agencies of government are the only indispensable defendants to this action.” Id. at 475-6.
In like manner, the interests of the School Board in Dolan v. Land were so merged with the interests of the Department of Revenue and the Fayette County Property Valuation Administer, Sheriff and Clerk, that joinder was not required. The PVA and the Department of Revenue had the same interests as the School Board in seeing that the method employed by the PVA was upheld as constitutional. The Sheriff and Clerk were agents for collection, performing their duties for the benefit of the School Board. The interests of these parties were identical and the School Board’s interests were protected in that case as provided by law. The School Board has yet to suggest any legal reason why it should not be bound by the original judgment as affirmed in Dolan v. Land. Its claim that it would have defended its interests better or differently than the PVA, the Commonwealth’s Department of Revenue, or the Sheriff of Fayette County, who were collectively charged with representing the Board of Education's interests by the duties of their office, is at best groundless speculation, unsupported by the record. Those parties defendant in the prior action were the agents of the Board of Education in any reasonable sense of the word. By our holding in the present case we simply go behind the judgment in Dolan v. Land and overturn it. The majority opinion states that Salmon Corp. v. Ky. Board of Tax Appeals is “not convincing authority so as to hold the Board of Education in the suit which claims a refund of taxes.” Pp. 829-30. It makes one wonder what authority it would take to be convincing. This hardly suffices to dispose of the precedent. Principles of law enunciated in one case should serve as precedent for the next *832unless we can point to a substantial difference or a reason for overruling them. We have done neither.
I agree with the majority opinion that neither the named or unnamed plaintiffs in the previous action qualify for an “automatic” refund. Giving effect to the previous judgment does not go so far as to qualify unnamed members of a class for an automatic refund. Even though they may be entitled to the benefits of a class action judgment, each must prove individual entitlement as a member of the class. This is what is meant, and all that is meant, by “the recognized principle that the court conducting the class action cannot predetermine the res judicata effect of the judgment which [remains to be] tested only in a subsequent action.” See p. 830.
Further, I recognize that KRS 134.590, “Refund of ad valorem taxes or taxes held unconstitutional,” is the method by which each individual plaintiff in the previous action, named or unnamed, must seek a refund. But there is no guidance from the statute or regulation as to what constitutes an “application.” By filing the Dolan v. Land case, the appellees obviously intended an application in the general sense. At the least they preserved the right to make application for themselves and all certified as members of the class until the suit challenging the constitutionality of the assessment could be determined. KRS 134.590(1) contemplates refunds for taxes paid “under a statute held unconstitutional.” KRS 134.590(6) then provides:
“No refund shall be made unless application is made in each case within two (2) years from the date payment was made. If the question of the amount of taxes due is in litigation, the application for refund must be made within two (2) years from the date the amount due is finally determined.”
A reasonable construction of KRS 134.-590 as it applies to the present case would be as follows: Each individual entitled to a refund should apply to the Board of Education which shall then authorize the Sheriff to make the refund from current tax collections in his possession. Thus the mandate of Dolan v. Land would be carried out pursuant to the procedure established in KRS 134.590. Any party failing to make application within two (2) years from the date of the final decision in Dolan v. Land, May 10, 1984, would lose the opportunity to do so. This approach would provide a window of opportunity of approximately two and a half months from the time of this decision for the plaintiffs in Dolan v. Land, named and unnamed, to apply for a refund under KRS 134.590. The case of Swiss Oil Corp. v. Shanks, 208 Ky. 64, 270 S.W. 478 (1925), 273 U.S. 407, 47 S.Ct. 393, 71 L.Ed. 709 (1927), cited in the majority opinion, has no possible application to the present case beyond requiring each individual member in the class covered by our previous decision in Dolan v. Land to separately apply for a refund in a manner as discussed in this dissenting opinion.
This case, as decided, results in a serious miscarriage of justice. The landowners prevailed in their previous action, but are deprived of their legal rights as determined by the previous action. Their rights are cut off by our present decision holding that they were required to apply to the Board of Education for a refund at a time when the unconstitutionality of the assessment was still in litigation.
STEPHENS, C.J., and AKER, J., join in this dissent.