dissenting.
I am much troubled with the holding of the majority today which clearly establishes that the firefighters had the right to strike. I am also greatly troubled with much that is said in arriving at that holding and likewise with much that is left unsaid. This Court last year in School District No. 351 Oneida County v. Oneida Ed. Ass’n, 98 Idaho 486, 567 P.2d 830 (1977), held, albeit by a divided Court, that there existed no right of a public employee to strike. The majority in Oneida, in arriving at its holding, noted:
In the private sector the right to strike is viewed as an integral and necessary part of the collective bargaining process. However, in the public sector the denial of the right to strike has the effect of weighing the scales heavily in favor of the government during the collective bargaining process. In Idaho our legislature has made the policy judgment as to the merits of not providing public employees with the right to strike. Rather, it has developed statutory alternative processes to resolve labor disputes between teachers and school boards. It would not be an appropriate judicial function to fault the legislature in those determinations.
Id. at 490-91, 567 P.2d at 834-835 (emphasis in original).
Admittedly, Oneida did not involve an actual strike, but rather the validity of the issuance of an injunction to prohibit a threatened strike. Nevertheless, the Court necessarily treated the issue of the right to strike and held contrary to the position asserted by the teachers there and asserted by the majority opinion today. In Oneida the Court clearly held that the public employees had no right to strike guaranteed by the constitution. The Court also held contra to the teachers’ position that the denial of the right to strike denied them equal protection since employees in the private sector did have the right to strike. Most importantly, in Oneida the Court rejected the position of the teachers that the Act “inferentially grants public school teachers in the state of Idaho the right to strike since the right to strike is not expressly prohibited in that act.”
The majority today asserts that since the right to strike is expressly prohibited by a statute during the term of a collective bargaining agreement, it necessarily follows that such right to strike is not prohibited at any other time. Such, in my opinion, is clearly contra to the express holding of Oneida. The holding of the majority today, without expressly overruling Oneida, can only add confusion and unequal treatment to an already disorganized and unclear field of law. Most assuredly, after today’s action, firefighters at times may strike, school teachers may not.
The majority in Oneida stated:
Appellants assert that the legislature has expressly prohibited strikes by firefighters, I.C. § 44-1811 and argue therefrom that the legislature must have intended to permit strikes by teacher-public employees, otherwise it would have prohibited those strikes as it prohibited strikes by firefighters . . . [Citation omitted] The legislature may well have believed that the substantial difference between *645the duties performed by firefighters vis a vis teachers required the express legislative prohibition against strikes by firefighters and that the common law remedies available against strikes by teachers were adequate and that strikes by teachers could be prohibited but only following adequate hearings.
Id. at 489, 567 P.2d at 833 (emphasis added).
To adapt the reasoning of the majority in Oneida to the instant circumstances, we must believe that the legislature engaged in an empty gesture, attempted to and did accomplish nothing in its enactment of Title 44, Chapter 18, Idaho Code, where it attempted to take collective bargaining disputes in the firefighting sector out of the hurly-burly of the private sector labor management disputes. In my judgment, the legislature, just as it did in the case of teachers, replaced the possibility of strikes, lockouts, economic coercion, firing, retirement system benefit quarrels, and the like, with a mandatory statutory requirement for resolution of disputes. I would not ascribe such a useless action to the legislature, but would continue to adhere to the reasoning of the majority opinion in Oneida wherein it was held that the imposition of mandatory statutory negotiations was an attempt to balance the scales otherwise heavily weighed on the side of the employer by the forbidding of strikes as an element of the bargaining process.
A further indication that the legislature did not intend to authorize strikes by public employees, particularly firefighters, is the enactment of Title 72, Chapter 14, Idaho Code. There the legislature removed yet another item which in the private sector would be left to the bargaining process. The legislature has thereby provided a mandated retirement system for the firefighters in Idaho. One of the questions left unanswered by the majority ^ere is whether in their right to strike in support of the bargaining process, the firefighters may assert demands for higher retirement benefits than those contained in the pertinent legislation.
It will also be of interest to public employee groups in the state of Idaho to learn if they have the right to strike only where, as here, the majority asserts that the employer failed to bargain in good faith. On the other hand, do public employees have the right to strike unencumbered by a showing or finding that the employer has failed to bargain in good faith? Who is to make that determination; do the employees possess the authority to unilaterally determine that the employer has failed to bargain in good faith? Correlatively, may the employer unilaterally determine that the employees have failed to bargain in good faith and thus lock out the employees?
The majority opinion postulates a number of bases for its holding that the firefighters here possess a right to strike. The majority first examines the statute prohibiting strikes during the term of a contract and arrives at the conclusion that since strikes at other times are not prohibited ipso facto they are permitted. Such is clearly contrary to the Court’s holding and rationale expressed in Oneida. If we are to depart from that recently announced case, it should be done so in clear, explicit language which, in my judgment, is absent in today’s majority opinion.
The majority next examines the legislative intent demonstrated solely by the “unchallenged testimony” of “the lobbyists in charge of the 1969 push for collective bargaining legislation;” that “testimony” was presented in an informal type hearing before the Civil Service Commission, in which it was announced that rules of evidence would not control nor be observed and which was rife with hearsay and conclusory statements. To posit that such comments are binding, persuasive, or even of passing interest to this Court in its determination of legislative intent is, to me, a new and novel rule of law. In my judgment, the cases cited by the majority in support of such a ruling are neither compelling, nor persuasive, nor applicable. In National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U.S. 453, 94 S.Ct. 690, 38 L.Ed.2d 646, the Court, in its search for legislative intent, cited the public records of appropriate congressional committees and the testimony therein of *646cabinet officers. In Data Access Systems, Inc. v. State Bureau of Securities, 63 N.J. 158, 305 A.2d 427 (1973), certain affidavits, including that of the state attorney general, had been submitted by amicus curiae purporting to clarify legislative intent. The court conclusively stated therein, “Our conclusion as to the meaning and true intent of the statute is reached without reference to any extrinsic materials.” Id. 305 A.2d at 432.
As stated by the majority, the city voiced its desire to call a then sitting legislator to give his opinion as to legislative intent. Such, in my judgment, would have provided no more than the ridiculous spectacle of two persons arguing about the intent of the legislature, one from within and one from without. All of such “testimony” would obviously have had to have been based on hearsay, conclusions and speculation.
The majority opinion also makes reference to certain language contained in the contract between the firefighters and the city. Such contract had expired before the actions complained of here. I find no theory upon which it can be theorized that a contract agreement between two parties authorizes and legitimizes action otherwise prohibited by law. I had always believed that such a contract provision would be held invalid as a violation of public policy.
The majority also points to various correspondence from the then Office of the Attorney General purporting to construe the provisions of the pertinent statute. The majority indicates that the firefighters might have been reasonable in placing reliance upon the first letter opining that the firefighters had a right to strike. Even assuming that the attorney general is authorized to furnish legal advice to private persons relating to matters in dispute, such reasoning, in my judgment, ignores the specific provisions of the second letter which stated clearly that an error in legal judgment had been made and that the conclusion of the first letter was in error. What the majority again does not tell us is that even in the first opinion issued by the attorney general’s office, the firefighters were specifically advised that in the event they did go on strike, there was no requirement that they could return to their jobs thereafter. “However, the corporate agent may replace the striking firefighters with replacements. Pacific Gamble Robinson Co. v. NLRB, 186 F.2d 106 (1950). He does not have a duty to discharge the replacements hired during the strike in order to provide positions for striking firefighters after the strike is over. NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 58 S.Ct. 904, 82 L.Ed. 1381 (1937).”
I turn now to the discussion of the majority of the grounds for discharge by the Civil Service Commission.
In my opinion, the majority opinion ignores the express provisions of the statute which provides that the action by the commission will be reviewed by the district court solely to determine if it was “made in good faith and for cause * * Thereafter, it is provided that no court review shall be undertaken except upon those grounds. In my judgment, clearly, the only issue before the commission and before the district court was whether the refusal of the firefighters to follow a direct order and go on strike constituted a violation of the pertinent regulations of the city and the Civil Service Commission and was therefore grounds for discharge. Clearly, the firefighters did refuse to respond to a direct order and went on strike and such action was in violation of the pertinent regulations. Hence, good cause existed, in my judgment, for the order of the commission. The majority opinion, rather than examining the good faith of the commission, proceeds to examine the good faith of the city in the bargaining process. Even considering that the actions of the city during the bargaining process were relevant to a determination by the district court, I must disagree. It should be noted here that the parties had reached an impasse in their negotiations and the issues had been submitted to a fact finding body which was on the verge of making its findings and actually did make its findings dated May 9-10. As noted by an addendum to the report of the fact finding commission dated May 10, 1977, entitled “CLARIFICATION: . . . The last sentence in paragraph one reads as *647follows: ‘We are assuming the Food Allowance will be restored’. The statement of restoration is intended to mean to include retro-active to the date that management unilaterally decided to discontinue the benefit.”
I cannot agree that the record demonstrates that the city refused to bargain in good faith. Neither can I agree “if there are no contractual provisions to the contrary, the city would have ‘cause’ to discharge strikers and the firefighters could not themselves refuse to negotiate in good faith, secure in the knowledge that they had a fully protected right to strike.” I cannot agree that the terms of an expired contract should govern as to whether the city, by reason of a firefighters strike, had cause to discharge.
I note that the majority opinion gives no consideration to the resolution of a problem which will obviously arise following today’s decision. What is to happen to the present employees of the Coeur d’Alene fire department? Insofar as the record demonstrates, they are civil service employees entitled to all the rights and benefits held by other civil service employees. They cannot be discharged except for cause and in good faith. The civil service regulations spell out in detail those reasons for discharge which constitute “cause.” Nowhere therein is there provision for an employee to forfeit his job and be replaced by a former employee who has gone on strike and been discharged.