ON DENIAL OF PETITION FOR REHEARING
BISTLINE, Justice.On the petition for rehearing the votes to grant of Justice Huntley and myself were insufficient under the rules of the Court. Had even one member of the majority voted for a rehearing, then, in this very important case the Court would have expended one hour of its valuable time in hearing oral argument — and perhaps not even that. The lesson to be learned is that three not only beats two, but that three, when so motivated, can avoid a rehearing. Which may be well in some cases, because it is necessary to keep the production line moving. However, rehearings have been granted in other cases of considerably less legal moment, which may present a genuine concern to the trial bar.
Doubting that anything added at this stage can work any miracle, I write only to suggest the error in not granting a rehearing. The Court is not asked to ipso facto reverse its position — only to give the important issues deserving further consideration.
Justice Huntley and I wrote independently of each other. His dissenting opinion spelled out persuasively the purpose and intent of I.C. § 72-439 which states the requirement that for a non-acute occupational disease the employer shall not be liable for any compensation unless the employee was exposed to the hazard of the disease for sixty days in the same employment. His well-reasoned opinion had no impact upon a majority bent upon standing fast to a holding “that the 60-day exposure requirement ... means that the employee must have worked on 60 calendar days for the same employer before the employer is liable____” The text of I.C. § 72-439, which does not appear in the majority opinion, does not so provide. It requires a 60-day period of employment. No mention is made of calendar working days. The holding of the majority is pure ipse dixit. It is said to be fortified by Jones v. Morrison-Knudsen Co., Inc., 98 Idaho 458, 567 P.2d 3 (1977) and by McLean v. Hecla Mining Co., 62 Idaho 75, 108 P.2d 299 (1940).
The majority, although cognizant of the Industrial Commission’s acknowledgment that claimant carried the dust in his lungs *130in-between calendar working days, and was thus exposed, adamantly declined to follow its own admonition to “see McLean v. Hecla Mining Co.” Accepting that advice, McLean was visited, not just the Idaho Reports, Vol. 62 at p. 75, but the original appeal record and briefs. A report of my in-depth inquiry into McLean and its companion case, Habera v. Polaris Mining Co., 62 Idaho 54, 108 P.2d 297 (1940), was presented to the majority in a documented jdissent which illustrated beyond any reasonable doubt that McLean had no validity whatever, and Habera merely set the stage for avoiding attorney Horning’s well-mounted constitutional attack on the newly enacted Occupational Disease Compensation Law. Turning Mr. Horning’s argument and authority aside, the Court said:
We do not find it necessary to pass upon the constitutionality of the statute, in order to decide the case and, therefore, will not do so____ However, we recommend that the legislature, which will convene shortly, give careful attention to the provisions of the Occupational Disease Compensation law, and, particularly, that portion of it having to do with silicosis, to the end that its provisions be clarified.
McLean, supra, 62 Idaho at 78, 108 P.2d at 302. While it is not difficult to understand why the Court chose to throw this hot potato to the legislature with the latter about to meet, I blush for the manner in which it was dismissed — at the expense of the claimant McLean and his $480 total award. Unfortunately, the' escape from passing on the constitutional question in such a manner has perverted the compensation law for now almost a half century. Here the Commission and its referee were bound by it. This Court, however, is not so restricted.
Touching upon the theme of Justice . Huntley’s opinion, and fortifying it in the utmost, is the original 1939 enactment, to which my attention was attracted upon being advised to “see McLean.” I.C. § 72-439 has remained unchanged since it was first enacted in 1939 and was first § 43-2109 of the Idaho Code Annotated. See 1939 Idaho Sess.Laws, ch. 161, p. 290. On that same page also find § 43-2107, which, as I understand it, was a six-year transitory statute, after which it was of no effect. I do not tongue-in-check say “see sec. 43-2107 in the Session Laws,” because, if it has ever been re-enacted and is still extant statutory law, I am unable to find it in the Idaho Code. Justice Huntley discovered § 43-2107 after our opinions were released, and furnished the members of the Court with copies thereof. It provides:
43-2107. LAST EMPLOYER LIABLE-AMOUNT OF COMPENSATION.
Where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease shall be liable therefor; the amount of the compensation shall be based upon the average weekly wages (as defined in the workmen’s compensation law) of the employee when last so exposed under such employer; and the notice of disability and claim for compensation shall be given and made to such employer; provided, however, that the maximum compensation to be allowed for disability, or death, or both, on account of any occupational disease, other than silicosis, shall be $5,000.00, until a transitory period of six years from the date when this chapter becomes effective shall have expired, and thereafter the total aggregate of such compensation and benefits shall be as provided in the workmen’s compensation law; provided further that in case of silicosis the only employer liable shall be the last employer in whose employment the employee was last injuriously exposed to the hazards of the disease during a period of sixty days or more after the effective date of this chapter. (Emphasis added.)
Doubters as to the validity of Justice Huntley’s earlier opinion cannot read the foregoing without having their doubts eradicated. Just as he wrote, a purpose of the new occupational disease law was to indeed fix liability upon the last employer — thus avoiding complex and almost impossible ap*131portionment problems. Section 43-2107, taken together with § 43-2109, clearly establishes that, in determining who was the last employer, the requirement is a 60-day period of employment.
Moreover, § 43-2107 serves to completely obviate the philosophic worries which a majority of a 1985 Supreme Court are plagued with as to the workings of the 1939 legislature, particularly:
Workers’ compensation does not purport to be a social insurance program covering all a worker’s health problems. The legislature has a legitimate interest in seeing that coverage for occupational diseases be kept within reasonable limits and in controlling the financial impact on Idaho industry and consumers. The legislature might have determined that these interests made it reasonable to establish a condition precedent of 60 days exposure before imposing liability for non-acute occupational diseases. The legislature might also have determined that it would be unfair to impose liability on employers for time-related diseases without imposing a corresponding time requirement on the employment relationship. (Emphasis added.)
Those speculative meanderings as to what the 1939 legislature might have intended have no genuine purpose in an opinion for the Court. It is readily seen from § 43-2107 that the 1939 legislature was able to determine for itself. First, observe that with a proper regard for the imposition of the new law upon industry, that a maximum limit of $5,000 was imposed, to be in effect for a six-year transitory period. This, together with the last employer provision was adequate — in the legislative mind — and served well in “controlling the financial impact on Idaho industry,” the main concern of a 1985 majority of this Court.
This Court in its 1939 McLean decision undoubtedly did not perceive the mischief which it was working in misstating the law in order to avoid the difficult constitutional issue presented to it. The injury done to the working man or woman by that mischief has remained uncovered until the year 1985. This Court can now undo that mischief. A majority of the Court refuses to do so or explain any reasons. Two wrongs do not make a right.
HUNTLEY, J., concurs, and concurs also in the dissenting opinion of BISTLINE, J., of January 29, 1985.