dissenting.
I.
It is difficult for me to distinguish the Court’s new opinion from the previous opinion now withdrawn — with which I and one other member of the Court concurred. Both opinions contain language declaring the limitations of Idaho Constitution Art. 5, § 9 and I.C. § 72-732, and both place reliance on Johns v. S. H. Kress & Co., 78 Idaho 544, 307 P.2d 217 (1957) for interpretation of the word “misconduct” found in I.C. § 72-1366(e). The earlier opinion of the Court pointed out, correctly, that misconduct was defined in Johns v. S. H. Kress & Co. as “willful, intentional disregard of the employer’s interest; a deliberate violation of the employer’s rules; or a disregard of standards of behavior which the employer has a right to expect of his employees.” 78 Idaho at 548, 307 P.2d at 219.
The earlier, and now withdrawn, opinion cited our recent case of Wroble v. Bonners Ferry Ranger Station, 97 Idaho 900, 556 P.2d 859 (1976) as being a case “where this Court addressed the issue of when an employee’s violation of his employer’s rules would constitute misconduct,” and in reversing the Commission’s decision denying the benefits of the Act, quoted from Wroble:
“Here, if misconduct there was, it came from the claimant’s nonconformance with the letter of the rule enunciated by the employer. Here, there appears to be no deliberate violation of the rule.” (Emphasis added)
Wroble v. Bonners Ferry Ranger Station, 97 Idaho at 902, 556 P.2d at 861.
Wroble, a unanimous decision of this Court, again set forth this Court’s definition of disqualifying misconduct that was first found in Johns and perpetuated thereafter in Oliver v. Creamer Heating & Appliance, 91 Idaho 312, 317, 420 P.2d 795, 800 (1966) and a sequence of other cases set forth on page 902 of 97 Idaho, 556 P.2d 859.
Having “Cf.”d Wroble in today’s opinion, the Court restates the Johns definition of disqualifying misconduct, and holds that Jenkins falls into that definition.
Jenkins may have been negligent in entrusting the message to his nephew, assuming that he knew of any propensity toward inattentiveness on the part of the nephew. The nephew may have been negligent, but if so, it is improper to penalize Jenkins, whose conduct is at stake. Applying the rule in Johns, wherein the Court took it upon itself to define “misconduct,” the Commission in the first place should have allowed Jenkins’ claim, and where it did not, we should in turn reverse.
Given the facts found by the Industrial Commission, the record simply does not show that appellant intentionally or deliberately violated his employer’s rule requiring notification of an absence as far in advance as possible. Appellant’s notification was at best negligent, but not a deliberate violation of the spirit of his employer’s, rule. A negligent attempt to notify one’s employer of an intended absence is not an intentional, deliberate violation of the employer’s rules. No deliberate violation of the employer’s rule having occurred prior to his discharge, appellant is not guilty of misconduct within the meaning of I.C. § 72-1366(e).
II.
However, although case law applicable to this controversy requires that Jenkins be awarded unemployment benefits, because it is apparent that the opinion released today can only bring new bewilderment, I have suggested that the Court reexamine the stand taken in Johns v. S. H. Kress & Co. in light of our Idaho Constitution, Art. 5, § 9, and I.C. § 72-732; and while it has not done so, and perhaps properly, where neither party has raised the validity of Johns v. S. H. Kress & Co. as an issue, it is proper that some forewarning be uttered in that regard.
The pertinent statute of the Employment Security Law here involved is not ambiguous, but inconsistent decisions of this Court surely have made it so. Certainly the turnabout in this case will be cause for additional concern.
*554The statute in question, I.C. § 72-1366(e), does not disqualify from the benefits of the Employment Security Law all employees who are discharged. Rather it makes ineligible the employee who “was discharged for misconduct in connection with his employment.” The Court in Johns v. S. H. Kress & Co., supra, for the first time appears to have expanded upon I.C. § 72-1366(e) by therein defining that statutory language. Since then it has been accepted with the force of law that there can be “misconduct” which, though it be in connection with the employment and may serve to justify the employer’s discharge of an employee, will not suffice to disqualify the employee from gaining the benefits which the law provides, with the ultimate decision not always being that of the Commission, but of the Court where an appeal has been taken from the Commission.
In Booth v. City of Burley, 99 Idaho 229, 580 P.2d 75 (1978), this Court re-examined its standard of review in those cases where witnesses do not testify live before the Commission in light of the constitutional provision; similarly, we should again consider here the standard of appellate court review where the determination is a mixed question of law and fact.
One text states that, even where there is not our constitutional directive, “As a general rule, mixed questions of law and fact stand on the same footing as pure questions of fact and are not subject to review by an appellate court.” 5A C.J.S. Appeal and Error § 1642 (1958) at 229-230. It is an ever-present problem to recognize that which is a mixed question. In the particular type of case under discussion, however, it is not difficult to ascertain that we deal with a mixed question. The fact-finder has the responsibility and function to find from the evidence presented what evidentiary facts exist in regard to the claimant’s discharge and whether those facts amount to misconduct; and from there to determine whether the misconduct is in connection with the claimant’s employment. Such are mixed questions of law and fact.1
As earlier mentioned, the Court itself in Johns v. S. H. Kress & Co. expanded the scope and standard of review in unemployment benefit cases. The simple issue in that case was “[w]hether refusing to work on a legal holiday constitutes misconduct on the part of the employee.” 78 Idaho at 547, 307 P.2d at 218. A strong two-member dissent would have sustained the Commission determination that where the hiring contract did not expressly require services on a legal holiday, refusal of an employee to work was not misconduct in connection with the employment. The dissent was impressed with the benevolent aspects of the Employment Security Act; the majority’s concern was in essence that public monies not be paid to a person refusing to work. “Upholding such a claim as is here made would not serve the purpose for which the Fund is created.” Johns v. S. H. Kress & Co., 78 Idaho at 548, 307 P.2d at 219. The majority, in the process of advocating its philosophy, and absent any such issue being raised before the Commission or in the Court, conveniently interpreted the term “discharged for misconduct,” and thereupon carried the day by finding the conduct of claimant Johns within the very rule it expostulated in that case, saying that that claimant’s excuse for not working “was in effect a positive, arbitrary refusal to comply with the terms of the contract of employment" Id.
In view of the inconsistencies of the decisions of this Court, and the ensuing problems thereby visited upon the Commission, claimants and employers, the holding of Johns v. S. H. Kress & Co. should be recon*555sidered.2 The Court-supplied definition was merely borrowed from the dictionary definition of the word, all of which tends to explain why the legislature had not felt called upon to define a word which had a well-recognized meaning.
It was for the Commission in Johns v. S. H. Kress & Co. to determine the facts of that discharge, to determine whether that claimant’s acts or omissions constituted misconduct, and to determine whether that misconduct was in connection with the employment. Having ascertained the facts, it was then the function of the Commission to interweave those facts with the law, and declare the eligibility or non-eligibility of the claimant. The final determination was a mixed question of law and fact. If competent and substantial evidence sustained the decision of the Commission on mixed questions of law and fact, this Court should not have interfered any more than it should have interfered on questions involving fact alone. Only when there is presented a pure question of law may the Court upset a Commission decision. If Johns v. S. H. Kress & Co. and its progeny overstep the constitutional limitation, it should be overruled as was Mandes v. Employment Security Agency, 74 Idaho 23, 255 P.2d 1049 (1953). Only in this manner can the Court continue to bring some stability into this field. So long as Johns v. S. H. Kress & Co. stands it is the law in Idaho that this Court reserves unto itself the right to make the ultimate determination of whether a claimant’s misconduct was or was not disqualifying^ deliberate.
DONALDSON, C. J., concurs in Part II.. Similarly, where a jury is the finder of fact on a murder charge, it must determine from the evidence whether a defendant killed a person (a fact) and under instructions of law determine further whether such homicide fits into the legislatively established classification of homicide which is excusable or justifiable, or is voluntary manslaughter, involuntary manslaughter, or murder in the first or second degree — certainly a question of fact and law. Many other such mixed questions of fact and law are readily identifiable.
. Short months ago this Court took a second look at a related case preceding Johns, namely Mandes v. Employment Security Agency, 74 Idaho 23, 255 P.2d 1049 (1953), and it (and other cases) were specifically overruled insofar as the same theretofore stood for the proposition that Commission findings were not binding on appeal “when the Commission does not hear and see witnesses.” Booth v. City of Burley, supra, 99 Idaho at 232, 580 P.2d at 78.