The trial court sustained a demurrer to plaintiff's amended complaint, after which, by judgment, it dismissed the action on the merits.

Plaintiff owned certain property in the city of Milwaukee abutting on streets which the city improved in various ways. The city levied assessments against the property for such improvements and, complying with the provisions of the city charter, gave notice by publication to the affected property owners. Plaintiff's original complaint alleged that its property was not benefited by the improvements; that it had no actual notice until it was too late to protest the assessments against its property; and that the constructive notice by publication was inadequate to comply with the requirements of due process of law. The complaint demanded judgment, declaring unconstitutional the sections of the city charter which make such notice sufficient, and holding null and void the assessments levied pursuant to such notice. The city interposed a general demurrer which was sustained by the circuit court. Upon appeal the supreme court divided evenly which, perforce, resulted in an affirmance of the order sustaining the demurrer. This is reported in Wisconsin Electric Power Co. v. Milwaukee (1953), 263 Wis. 111, 56 N.W.2d 784. Subsequently a motion by appellant for rehearing was denied.

Upon remand plaintiff obtained leave of court to plead over and has now drawn and served an amended complaint to which the city has again demurred generally. The circuit court has again sustained the demurrer and has granted judgment dismissing the amended complaint upon the merits, and again the plaintiff has appealed.

BROWN, J.

The amended complaint does not differ in any material respect from the original complaint, nor does appellant contend that it does. It presents to us the identical issue which we considered and determined in Wisconsin Electric Power Co. v. Milwaukee (1953), 263 Wis. 111, 56 N.W.2d 784. The reason for this appeal appears to be that, since the first one, the supreme court of the United States has considered once more the sufficiency of notice given by publication and in New York v. New York, N. H. H. R. Co. (1953), 344 U.S. 293, 73 Sup. Ct. 299, 97 L. Ed. 333, has affirmed and somewhat strengthened the principle it announced in Mullane v. Central Hanover B. T. Co. (1950), 339 U.S. 306, 70 Sup. Ct. 652, 94 L. Ed. 865 (referred to in our former opinion, 263 Wis. 111, 112), namely, that when more-certain means of communication are reasonably available, notice by publication is insufficient to meet the demands of due process of law. In effect, appellant does no more than to ask us to reconsider, in the light of this more-recent authority, our previous decision that the notice of special assessments given by the city by publication did not offend constitutional requirements.

For many years, beginning almost with the creation of this court, we adhered strictly to the principle that an issue once thoroughly considered and determined was settled for the purposes of the action in which the determination was reached, beyond the court's power to alter it. Then, in McGovern v. Eckhart (1929), 200 Wis. 64, 227 N.W. 300, the court, through Mr. Justice ESCHWEILER, exhaustively reviewed the earlier decisions bearing upon "the law of the case" and announced a departure from the former hard and fast rule, to wit:

"The rule of the `law of the case,' as heretofore established and strictly followed in this jurisdiction, is now and for the future modified so as to permit the correction of error made by the supreme court on a former appeal in the same case whenever for cogent, substantial, and proper reasons the court is convinced that the prior ruling in the particular case ought not to stand as the law of that case and other cases." Headnote 1.

We have thus said that the application of the rule of "the law of the case" is discretionary with this court. We have not said that the rule is abolished, nor do our later decisions lead to that conclusion.

In Pierner v. Mann (1947), 251 Wis. 143, 145, 28 N.W.2d 309, we said:

"Appellants now urge that cases cited and relied upon by them were not distinguished in the former opinion and therefore ask that we again consider them. This is equivalent to asking for a rehearing on the former decision, which cannot be granted. That decision determined the law of the case and an extended opinion distinguishing cases relied upon by appellants would not change the result, as the ruling upon our first review was taken deliberately and considerately after a full examination of all cases cited by appellants."

Even more recently, in Pick Industries, Inc., v. Gebhard-Berghammer, Inc. (1953), 264 Wis. 353, 355, 59 N.W.2d 798, we said:

"However, we feel this is a proper situation for application of the rule of the `law of the case.' This court, having already determined on the prior appeal that the arbitration proceedings were statutory, Pick Industries, Inc., is thereby precluded on this appeal from again raising the same question."

The question now presented to us for the third time in this action received thorough consideration upon the first appeal and the motion for rehearing. Under the circumstances, the decision automatically following from the equal division of the appellate court has little weight as a precedent in other cases; but a decision, even by a divided court, ought at some stage to attain stability for the duration of the action in which it was rendered. We think that stage was reached in the motion for rehearing the original appeal. We consider that when that motion was denied, the sufficiency of the published notice became the law of the case and the question is not to be repeatedly reargued and reconsidered in the subsequent stages of the litigation.

By the Court. — Judgment affirmed.