(dissenting in part) — The legislature declared — it is the only one of the three departments of government having the constitutional right so to do— the policy of this state to exact a ten per cent penalty in the event of the failure of a guardian to render a verified account “at least once in every two years, and whenever cited to do so.” Rem. Rev..Stat., § 1575. [P, C. § 9907].
The majority argue that the exaction of ten per cent is a penalty and not a compensation, the imposition of which is not dependent upon the existence of any damage whatsoever, and that it is so excessive as to amount to a deprivation of property without due process of law.
It may appear to the majority to be absurd and unjust to exact a ten per cent penalty for failure to render the prescribed account and not so severely punish— measured in terms of money — one who misappropriates his ward’s property. The absurdity, incongruity, or injustice stressed by the majority is not a sound basis *244on which to rest the court’s claim of legislative powers. Doubtless, the legislature contemplated, when it enacted the statute which the majority opinion repeals, that a criminal penalty which society may, if it so desire, require of a guardian who embezzles the property of his ward is sufficient. How much or how little punishment the legislature should fix, if not within a constitutional inhibition, is not a judicial question. By what authority is it to be determined whether the penalty in the one case shall be measured by money and in the other by imprisonment and fine? Under our system, that power is lodged with the legislative branch of the government.
In my opinion, there can be no question as to the constitutionality of the statute in question. If a statute is constitutional, it can not be against public policy. If it is constitutional, it is public policy. The remedy for the failure of the statute to cover the situation the majority have in mind — also exact ten per cent penalty of an embezzling guardian in addition to the criminal penalty that may be his portion — is for the legislature, and not for the court. It is the function of a court to declare what the law is, and not what its members as individuals think it ought to be.
If we legislate, as the majority are now doing, when we think the penalty in one case is too severe because a like penalty is not exacted of another for a different offense, we arrogate that power in defiance of the constitution. If we thus trespass, then, as a court and as individuals, we should be rather chary in our criticism and not resentful of executive and legislative invasion of the judicial province.
The citation and quotation of opinions
“That codeless myriad of precedent,
That wilderness of single instances.”
(Aylmer’s Field)
*245of courts of other jurisdictions to buttress the position of the majority do not warrant our invasion of the legislative province. Too often “Quod exemplo fit, id etiam jure fieri putant” (Cicero, Epistles IY, 3). Our disregard of the constitution can not be justified by the fact that other courts have also encroached upon the legislative province. I can not lend reverence to even such well-established precedent. I would not be convinced that two and two were more than four, even if all of the courts of Christendom so held.
In all other respects, I agree with the majority opinion.
Blake and Holcomb, JJ., concur with Millard, J.