dissenting.
I dissent for the reason that a majority of this court, rightly or wrongly, decided in 1969 that this same cross had to be removed. In my opinion, nothing has happened subsequently which affords any logical basis to set aside that decision, and the law is clear and settled that parties are not permitted to relitigate matters that have already been decided although the personnel of the court which previously decided the issue has changed.
This is a suit in equity pursuant to ORS 16.460(1) to set aside the decree in Lowe v. City of Eugene, 254 Or 518, 451 P2d 117, 459 P2d 222, 463 P2d 360 (1969), cert den 397 US 1042, 90 S Ct 1366, 25 L Ed2d 654, *1027rehr den 398 US 944, 90 S Ct 1838, 26 L Ed2d 283 (1970).
The suit cannot be maintained upon the ground that this court erred in deciding the Lowe case.1
"It has already been intimated that neither an erroneous conclusion upon which a judgment was based, nor any irregularity of proceeding not involving the jurisdiction of the tribunal pronouncing it, can have any effect in determining the question whether the judgment should be set aside or restrained in equity. Such, beyond doubt, is the law. 'A court of equity will never set aside or enjoin a judgment on the ground of error or mistake in the judgment of the court of law.’ * * * for it is universally conceded that a court of equity will not interfere on the ground that in its decision the court of law or other judicial tribunal whose judgment is sought to be enjoined, committed error, whether of law or of fact.” 3 Freeman, Judgments (5th ed) 2526-2527, § 1216.
A Comment to § 112, ch 5 of the Restatement of Judgments dealing with equitable relief from judgments states the policy underlying the quoted statement:
"Where a fair opportunity has been afforded to the parties to an action to litigate a claim in a court which has jurisdiction over them and over the cause of action and the court has finally decided the controversy, the interests of the State and of the parties require that the validity of the claim and any issue actually litigated in the action shall not again be litigated by them * * Restatement 532, Judgments § 112.
In 1969 this court by a vote of four to three, with one of the majority being a pro tempore Justice, reversed the trial court and held that the cross need not be removed. A petition for rehearing was granted. The seven regular members of the court sat on the rehearing and the former Justice pro tern did not. Five of the regular members of the court held the cross had to be removed. Two regular Justices dissented. With *1028an opinion, the majority of five denied a petition for rehearing. The United States Supreme Court denied a petition for a writ of certiorari and appeal and a petition for rehearing. Lowe v. City of Eugene, supra (254 Or 518).
The majority of this court held in Lowe v. City of Eugene, supra (254 Or 518), that the City’s permitting this particular cross to be erected and exhibited on City property was contrary to the first amendment to the Federal Constitution and several sections of Article I of the Oregon Constitution. The majority held that in the context of the erection and exhibition of this particular cross it was a religious symbol and the City’s action in authorizing it to remain fostered the establishment of the Christian religion.
The holding in Lowe was based primarily on two considerations: (1) the essentially religious nature of the symbolism of the cross in our society, and (2) the connotations of government sponsorship of the Christian religion which resulted from the circumstances under which the City of Eugene approved the erection of this particular cross in its present location. The following excerpts illustrate the facts and considerations which were persuasive to a majority of the court:
"* * * Their statements [witnesses before the City Council] reflected the popular sentiment at the time and place, and furnished ample proof, if any were needed, that the chief purpose of the display was religious. There is no doubt, from the record, that the mayor and council were responding to popular demand. It was to prevent this very kind of response to majority pressure, however, that the establishment clause of the First Amendment was written into our federal constitution.” 254 Or at 533.
"The principal purpose which motivated the city council was its desire to conform to the desires of a majority of the citizens of the community, who conscientiously believed that their preferred religious symbol was entitled to preferential public display simply because the majority wished it so. Such a response to majority religious pressure is, of course, exactly what *1029specific guarantees of rights in the state and federal constitutions were designed to prevent.
sfc ‡
"Public land cannot be set apart for the permanent display of an essentially religious symbol when the display connotes government sponsorship. The employment of publicly owned and publicly maintained property for a highly visible display of the character of the cross in this case necessarily permits an inference of official endorsement of the general religious beliefs which underlie the symbol. * * 254 Or at 544.
The majority states the issue in this case: "* * * whether the display of the cross on city-owned property under the circumstances existing at the time of the trial of this case, as compared with its display at the time of Lowe under the circumstances then existing, satisfies or fails to satisfy the test established by the Supreme Court of the United States for application in such cases.”
I am of the opinion, however, that the issue is not whether the present display of the cross meets the appropriate constitutional tests, but whether, in light of the decision and reasoning in Lowe, the circumstances have changed so drastically as to justify setting that decision aside.
The only change in circumstances is the amendment to the City Charter and the action taken pursuant to it. The amendment merely authorizes the City to accept the cross as a gift and designates it as a war memorial. It authorized an American Legion post to affix a suitable plaque to the cross and directed that the City light the cross on patriotic days.
The majority states that the significant changes wrought by the amendment are: (1) Now a Legion post, rather than a corporation, Eugene Sand & Gravel, Inc., is the sponsor of the cross; (2) Now the purpose of the Legion is to display it as a war memorial, whereas before the persons (which must refer to either the sponsor or the majority of the townspeople who per*1030suaded the City Council to permit the cross to be retained) desired it to be displayed for a religious purpose; (3) Now the government, speaking through the vote of a majority of the people, authorized its display as a war memorial, whereas the City Council previously did not consider whether it was a war memorial; (4) Now the cross must be lighted on patriotic days and Christmas; before it was customarily lighted on Easter and Christmas (there is no prohibition in the ordinance about lighting it at Easter); (5) Now a plaque shall be affixed stating its purpose; before nothing indicated its purpose; (6) The Legion had a dedication ceremony and conducts regular memorial ceremonies; and (7) Plans have been made to put appropriate words of memorial on the cross.
In Lowe this court held, in essence, that the "primary effect” of the City’s action in permitting the cross to remain in the park was to foster the Christian religion and the City’s action amounted to "excessive government entanglement with religion.” The majority now holds in this case that because of the changes listed above that effect and entanglement have been completely changed. I do not believe that the shield with which the Bill of Rights protects the minority is so thin or that a decree of this court can be so easily bypassed.
O’Connell and Holman, JJ., join in this dissent.dissented from the majority decision in Lowe-, however, I am of the opinion that the correctness of that majority decision cannot be questioned in this case.