(dissenting).
I dissent.
In view of the dissimilarity in the rulings of appellate courts in the area of the case at bar, no useful purpose can be served in lengthy discussions of aspects of the diversity in reasoning of the various decisions. I shall limit this dissent to discussion of the law as it exists in Idaho, based upon legislative policy not in contravention of basic concepts of constitutional law and judicial interpretations.
The basic facts are that Dr. Call, now deceased, performed an operation upon appellant Mrs. Billings, July 10, 1946. The period of aftercare, if such there was, did not continue later than October 10, 1946, when she sought the services of another physician. Thereafter she consulted various physicians and surgeons in continuous succession. June 2, 1961, a pelvic explora-' *499tory operation revealed a gauze sponge in the area of the original operation. She commenced this action May 16, 1962. Respondents interposed the defense of the statute of limitations, I.C. § 5-219, and grounded thereon their motion to dismiss. The trial court granted the motion and entered judgment of dismissal without leave to amend, May 2, 1963. This appeal resulted.
I.C. § 5-201 provides that civil actions can only he commenced within the periods prescribed in the chapter “after the cause of action shall have accrued, except when, in special cases, a different limitation is prescribed by statute.” That section must be read in pari materia with I.C. § 5-219 which provides, inter alia, for the commencement of an action within two years “to recover damages for an injury to the person.” Such an action is not a special case in which a limitation applies, different than the period of two years “after the cause of the action shall have accrued.” The following are notable examples of “special cases”:
1. I.C. § 5-218(4) - “An action for relief on the ground of fraud or mistake” shall not “be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.”
2. I.C. § 5-221 - “Actions on claims against a county which have been rejected by the board of commissioners must be commenced within six months after the first rejection thereof by such board.”
3. I.C. § 5-222 — “an action brought to recover a balance due upon a mutual, open and current account, * * * the cause of action is deemed to have accrued from the time of the last item proved in the account on either side.”
4. I.C. § 5-223 - “actions brought to recover money or property deposited with any bank, banker, trust company or saving and loan society, no limitation begins to run until after an authorized demand.”
5. I.C. § 5-237 - “actions against directors or stockholders of a corporation to recover a penalty or forfeiture imposed, or to enforce a liability created by law * * must be brought within three years after the discovery by the aggrieved party of the facts upon which the penalty or forfeiture attached, or the liability was created.”
In this action no situation is pleaded as tolling the statute of limitations, I.C. §§ 5-229 et seq.; nor is any circumstance pleaded or disclosed to show that it is a *500special case, as in fraud or mistake where the cause of action shall not be deemed to have accrued until discovery of the facts constituting the fraud or mistake. I.C. §§ 5-201 and 5-218(4) in pari materia. For discussion of the conclusive presumption “shall be deemed,” see Swanson v. Employment Security Agency, 81 Idaho 385, 342 P.2d 714 (1959).
I agree with the majority, that the basic question is: When did the cause of action accrue? Did the cause of action accrue at the time of commission of the negligent act, July 10, 1946, or on July 2, 1961, the date of discovery of the negligent act? Can the conclusive presumption of a deemed date of accrual of the cause of action to coincide with the date of discovery be read into the statute of limitations by judicial imposition, such a presumption not having been imposed by legislative fiat?
Tantish v. Szendey, 158 Me. 228, 182 A.2d 660 (1962) involved a factual situation similar as herein. In that case a surgeon failed to remove tubing inserted in a patient’s back in the course of an operation on September 5, 1956, with treatment ending October 27, 1956. The patient was not aware of the presence of the tubing in her back until discovery July 21, 1958. She commenced the action within two years thereafter, on July 20, 1960. Maine’s statute of limitations in part provided:
“Actions for * * * malpractice of physicians and all others engaged in the healing art shall be commenced within 2 years after the cause of action accrues.” R.S. c. 112, § 93.
The Supreme Judicial Court of Maine in ruling that the action was barred by the two-year statute of limitations, not only answered the decisive questions when the action accrued, but announced the legislative and public policy underlying the statute of limitations, in lucid language as follows:
“The decisive question is this: When did the action accrue? If the action accrued at the time of the operation in September 1956, the statute is a bar. If the action accrued when the tubing was discovered in July 1958, the action was seasonably brought
“In our opinion the action accrued at the time of the operation and specifically when the surgeon failed to remove the tubing on completion of the operation. The nature and time of the negligent act charged is tied plainly and with certainty to the fact of the operation.
“On the one hand there is what appears to be justice for the patient in commencing the accrual of the right of action when the negligence of the defendant is discovered, or reasonably should have been discovered and not before. How, says the patient, may I as a practical matter bring an action until the wrong, that is to say, the failure *501to remove the foreign substance, is known to me?
“On the other hand, the surgeon may with justice urge that the statute of limitations is a statute of repose designed by the Legislature to cut off claims which grow increasingly stale with greater age. The production of evidence and records necessary to meet malpractice claims becomes progressively more difficult with time.
“Meritorious claims may, it is true, be barred by commencing the running of the statute from the time of the negligent act when discovery is later made. Statutes of limitations in general, however, in their operation cut off both meritorious and unmeritorious claims. It is well understood that the purpose of such statutes is to bring repose and security to persons who might otherwise be faced for long periods with the possibility of meeting claims under more difficult conditions. The decision here rests upon the choice to be made between competing policies.
“In the event the discovery of the legal wrong comes after the expiration of the statutory period of limitations, there is obviously a hardship to the plaintiff. The possibility of hardship, however, does not, in our opinion, outweigh the need of certainty in establishing the time when an action accrues under the circumstances here disclosed.
“ * * * The relative lack of hardship to the plaintiff arising from the discovery before and not after the two-year period, however, is given no weight by us in determining the applicable rule. It is more properly material for the Legislature to consider in fixing the statutory period.”
In the case at bar the majority opinion states that “[t]he underlying theme in all of the cases represents a conflict between two basic policies of the law: 1. The policy of discouraging the fostering of stale claims, and 2. The policy of allowing meritorious claimants an opportunity to present their claims.” But Tantish v. Szendey, supra, and the many authorities therein cited disclose the sound reasoning, that a claim, though stale, may yet be meritorious; and that statutes of limitations, in their inflexibility, operate without reference to the merits and cut off both meritorious and unmeritorious claims. It is emphasized that statutes of limitations are statutes of repose, which require that litigation be initiated within the times prescribed by the legislature.
In areas of criminal law, where the interests of society are paramount the legislature has deemed it advisable to prescribe periods of time within which criminal actions must be commenced. See I.C. §§ 19-*502402 and 19-403 dealing with misdemeanors, and felonies other than murder. This Court has recognized the power of the legislature to enact legislation in that area. State v. Morris, 81 Idaho 267, 340 P.2d 447 (1959) ; State v. Bilboa, 38 Idaho 92, 213 P. 1025, 222 P. 785 (1923); State v. Steensland, 33 Idaho 529, 195 P. 1080, 13 A.L.R. 1442 (1921).
In workmen’s compensation, again in the area of public welfare, this Court has refused to apply the discovery doctrine, recognizing that though a statute of limitations, I.C. § 72-402 (formerly I.C.A. § 43-1202) works a hardship in that injury attributable to the accident may not become manifest (akin to discovery) until after the expiration of the limitations period prescribed for the commencement of proceedings seeking recovery, nevertheless, the court must be bound by the mandate of the legislature and that “the remedy is with the Legislature”. Moody v. State Highway Department, 56 Idaho 21, 48 P.2d 1108 (1935).
In the majority opinion it is stated that the. general rule which disallows the action has little to recommend it, since it is “neither the position of a majority of the jurisdictions nor is it firmly based on considerations of reason or justice.” While perhaps there is a difference of opinion as to just what the majority rule is (see Anno. 80 A.L.R.2d 368), that approach should not be accorded finality in arriving at a correct disposition of the legal questions involved herein. In considering the adoption of a particular doctrine to be superimposed by judicial fiat, the various arguments pro and con, as well as the decisions in our own jurisdictions bearing upon the subject, are to be accorded more judicial weight and importance than the mere numerical'weight of authority, if such there be.
The conflict in the various appellate court decisions shows the existence of turmoil in the area under consideration. By way of comparison, Lindquist v. Mullen, 45 Wash.2d 675, 277 P.2d 724 (1954) and De Long v. Campbell, 157 Ohio St. 22, 104 N.E.2d 177 (1952) deny relief, while Fernandi v. Strully, 35 N.J. 434, 173 A.2d 277 (1961) and Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959) take the opposite view. Each of those decisions, highly informative and well written, contains a dissenting opinion. In such a situation, the decisions of appellate courts, involving the particular statutes of their respective jurisdictions, offer but slight assistance in deciding like or similar questions, particularly where our own appellate court must look to its decisions and the Idaho Code in the premises, as well as to the interpretative decisions of the Ninth Circuit Court of Appeals which considers itself bound by the law of this State.
Moreover, the legislature at sundry times has amended the statute of limitations, I.C. §§ 5-201 et seq., which indicates that the *503legislature has not remained static in this area, nor unmindful of the importance of substantively limiting the time within which various actions may be commenced.
I return to the statute of limitations, I.C. Tit. 5, c. 2, wherein the legislature has not thus far fixed discovery as the time of accrual of various causes of action by imposition of a conclusive presumption, as it has in certain instances, notably I.C. §§ 5-218 (4), 5-222 and 5-237. While there is some authority for the proposition, that interpreting when a cause of action shall accrue is a judicial and not a legislative function, that view has been judicially countered by invoking the rule of statutory construction expressio unius est exclusio alterius (the expression of one thing is the exclusion of another). Applied herein, having made the deemed accrual of the cause of action in certain instances to be dependent upon the discovery of facts by the aggrieved party, the legislature did not intend such exception to apply to the accrual of the cause of action for recovery of damage for personal injury caused by the tortious act of another. The Washington Supreme Court employed that line of reasoning in Lindquist v. Mullen supra; and the Ninth Circuit Court of Appeals, in Summers v. Wallace Hospital, 276 F.2d 831, at 835 (1960), said it was “equally applicable with regard to Idaho.” Other recent cases employing the identical theory are Roybal v. White, 72 N.M. 285, 383 P.2d 250 (1963) and Peppas v. Marshall & Ilsley Bank, 2 Wis.2d 144, 86 N.W.2d 27 (1957). Moreover, implicit in those and similar decisions is the recognition of such legislation as substantive law.
The majority opinion points out that I.C. § 5-219(4), as amended in 1903, was (and it is) decidedly in favor of disallowing the present action. Such was the law, recognized in the early annotation, 74 A.L.R. 1317 (1931), cited with approval in Trimming v. Howard, 52 Idaho 412, 16 P.2d 661 (1932), and interpretated therein, that the legislature intended that the statute of limitations should commence to run from the date of the wrongful act or omission, rather than from the date of its discovery or of injury flowing therefrom.
Trimming v. Howard, supra, and the interpretative decision, Summers v. Wallace Hospital, supra, by the Ninth Circuit Court of Appeals, stand for the firm proposition that a cause of action to recover damages for injury to the person, I.C. §§ 5-201 and 5-219(4), begins to run from the time of commission of the negligent act from which the injury results, and not from a time of discovery. This Court in Trimming v. Howard, supra, referring to the statute of limitations, then C.S. § 6612(4), now I.C. § 5-219(4), stated:
“ * * * the great majority rule is that actions against physicians, surgeons, and dentists for injuries resulting from negligence are subject to the *504bar of the statute relating to injury to the person or death caused by the wrongful act or neglect of another, [citing 74 A.L.R.]” Supra at page 417.
This Court then held that “appellant’s cause of action arose on July 4, 1926, when the broken needle was left in his back,” i. e., at the time of commission of the tortious act.
In Summers v. Wallace Hospital, supra, decided 28 years later, appellant advanced the contention that the bar of Idaho’s statute, I.C. §§ 5-201 and 5-219(4), does not commence to run “until the patient knows, or in the exercise of reasonable diligence should know, of the injury and the cause of the disability,” i. e., from the time of discovery. The Ninth Circuit Court of Appeals, after observing that the courts of Idaho had not passed upon this question, referred to California decisions which adhere to the discovery doctrine. See Winkler v. Southern California Perm. Med. Group, 141 Cal.App.2d 738, 297 P.2d 728, 732, (1956), and cases there cited. The Court then stated:
“The great weight of authority in this country is to the contrary.”
Citing Anno. 74 A.L.R. 1317, at 1322 et seq., and Anno. 144 A.L.R. 209 at 227 et seq., and continuing the Court said:
“Examination of recent decisions fails to reveal any general trend in the direction of the California rule.”
The Court cited, as favoring the discovery-doctrine, Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959), and City of Miami v. Brooks, (Fla.1954), 70 So.2d 306, and as declining to follow such doctrine, Shearin v. Lloyd, 246 N.C. 363, 98 S.E.2d 508 (1957) ; Wilder v. St. Joseph Hospital, 225 Miss. 42, 82 So.2d 651 (1955); Lindquist v. Mullen, 45 Wash.2d 675, 277 P.2d 724 (1954); De Long v. Campbell, 157 Ohio St. 22, 104 N.E.2d 177 (1952).
The Court in Summers v. Wallace Hospital, supra, in effect regarded as substantive law the provision of I.C. § 5-218(4), that an action grounded upon fraud shall not be deemed to have accrued until discovery of the facts constituting the fraud. The Supreme Court of Washington in Lindquist v. Mullen, supra, ruled to the same effect in. language as follows:
“We are satisfied that had the legislature intended the principle of discovery to apply to tort cases based on negligence, it would have specifically said so, as it did with regard to discovery in fraud cases.”
New Mexico’s Supreme Court ruled likewise in its recent decision, Roybal v. White, 72 N.M. 285, 383 P.2d 250 (1963). The Supreme Court of Oregon in Wilder v. Haworth, 187 Or. 688, 213 P.2d 797 (1949), ruled in like manner, refusing to be won over by the argument that the Court should ignore precedent and apply the doctrine *505■of discovery as resting upon “broad considerations of justice”; said the Court, “ * * * the constitutional authority of a •court of law is limited to the interpretation and enforcement of the law as it is written.”
In the Pennsylvania case of Ayers v. Morgan, supra, the concurring opinion advances the premise that to adhere to the discovery doctrine in malpractice cases “is not judicial legislation but is instead constitutional interpretation,” a legitimate function of the judiciary in the light of Art. I, Sec. 11 of Pennsylvania’s Constitution, P.S., which provides in effect that every man shall have a remedy in due course of law for injury to his person or property. Idaho’s Constitution, Art. I, § 18 is a similar provision intended for the judicial protection of those rights. The Supreme Court of Wisconsin, in Reistad v. Manz, 11 Wis.2d 155, 105 N.W.2d 324 (1960), dismissed such a contention based upon a similar provision of Wisconsin’s Constitution, W.S.A.Const., Art. I, § 9, upon refusing to apply the discovery doctrine in a malpractice case. The following statement from Moon v. Bullock, 65 Idaho 594, 151 P.2d 765 (1944), supports this same conclusion :
“The declaration in the Bill of Rights that courts shall afford a remedy for ‘every injury of person, property or character’ does not of itself change existing law, and does not empower courts to legislate, or to amend, modify, or repeal laws to meet their ideas of what is ‘natural justice’.” Supra 65 Idaho at 606-607, 151 P.2d at 771.
Idaho Constitution, Art. I, § 18 is intended to afford judicial process to all persons, and a speedy remedy for such injuries as the law recognizes as actionable. And where a cause of action cannot be sustained due to the bar of a particular statute of limitations, an argument resting upon denial of a remedy is fallacious.
The majority opinion concedes that the alleged negligent act in the case at bar occurred July 10, 1946, the day of the operation upon Mrs. Billings. The opinion then proceeds upon the theory that a change in the statute of limitations should be interposed as regards when an action accrues for recovery of damage for injury to the person by inclusion of the conclusive presumption, that the cause of action be deemed to have accrued as of the date of discovery, and not when the chose in action comes into existence by commission of the tortious act.
As heretofore pointed out, the legislature at sundry times has amended sections of the statute of limitations, and has left others unchanged from the time of original adoption in 1881. The legislature, however, has not as yet imposed a discovery date as the deemed date of accrual of a cause of action grounded upon personal injury. Such represents the continuing policy on the part of *506the legislature which policy should not be altered by judicial fiat simply because in the particulars under consideration, it may be considered harsh in its application to malpractice cases.
I point to the action of the Missouri legislature which eliminated any doubt as to when a cause of action accrues, in the same type of case as here; it enacted a statute which provides that a cause of action “shall not be deemed to accrue [until] * * * the damage resulting therefrom is sustained and is capable of ascertainment.” Mo.Rev. Stat. § 516.100; Thatcher v. De Tar, 351 Mo. 603, 173 S.W.2d 760 (1943).
Until and unless I.C. § 5-219(4) may be amended so as to interpose therein the conclusive presumption that a cause of action growing out of a personal injury shall be deemed to have accrued at a different date than as of the time of commission of the tortious act, it is the duty of the judiciary to apply the plain words of the statute as presently written. The judiciary should not enter into the field of determining policy reserved to the legislative branch of the government. Oneida County Fair Board v. Smylie, 86 Idaho 341, 386 P.2d 374 (1963).
In Jewett v. Williams, 84 Idaho 93, 369 P.2d 590 (1962), this Court recognized the danger inherent in the encroachment of the judiciary upon the coordinate branches of government, but observed that it is the solemn duty of this Court to interpret the laws as enacted, and whenever possible, to prevent infraction upon the Constitution. This Court also recognized as an exception to the rule of stare decisis, that long standing law can be altered by judicial decision "where grave reason exists.” (Emphasis supplied). The case at bar does not involve determinations affecting the public health, welfare, safety or morals; nor any encroachment upon the rights guaranteed by Idaho Const., Art. I, § 18, as hereinbefore shown. Thus, grave reason does not exist for a construction of the statute of limitations, I.C. §§ 5-201 and 5-219(4) involved herein, which departs from the plain phraseology thereof. Any such change should be left to the legislature.
The judgment of dismissal of the trial court should be affirmed.