ON PETITION FOR REHEARING.
STEWART, J.A petition for a rehearing has been filed in this case, and counsel urges with much zeal and vigor that the court failed to give due consideration to the evidence under the former decisions of this court. The argument of counsel is based upon two propositions: First, that the district court, in appointing a guardian under the statute, is vested with discretion; second, that there was a conflict in the evidence in this case as to the fitness and suitability of Crocheron for appointment as guardian; and there being a conflict, the findings of the trial court should not be set aside. Were the members of this court unacquainted with the usual zeal and enthusiasm with which counsel for the respondent always presents the cause of his client, the court would be unable to fully account for the extreme views counsel has taken as to what is shown by the record in this case. From counsel’s contention we must at once conclude that the parent of a minor child has no natural right to the care and custody of such child, and that in the selection of a guardian for a minor the probate court .is vested with the discretion to take the custody of a minor away from its *453parents and give sneh custody to another, from the simple fact that in so doing the child may be surrounded with greater material comforts than if given to the parent, and by so doing may give effect to the wishes of the child, although only eight or nine years of age. Such, however, is not the law.
The application for the appointment of a guardian of a minor under the laws of this state is a statutory proceeding, and the power of the court is fixed and determined by the statute. The usual powers exercised by courts of equity are not given to the court in making an appointment of a guardian under the laws of this state. (In re Campbell, 130 Cal. 380, 62 Pac. 613.) By the provisions of sec. 5770 of the Rev. Codes, the power of the court to appoint a guardian is limited to eases “of minors who have no guardian legally appointed by will or deed.” In making such appointment see. 5774, Rev. Codes, requires the court to appoint the father or mother as such guardian, if competent to transact his own business and not otherwise unsuitable. This section is compulsory as to requiring the father or mother to be appointed, if competent to transact his own business and not otherwise unsuitable. The statute leaves open for investigation the competency of the father or mother to transact his own business, and if thus competent whether he is otherwise unsuitable.
In this case there is no contention whatever and no evidence was offered to the effect that Crocheron, the father, was not competent to transact his own business. It is claimed, however, by respondent, and it is upon this point counsel so earnestly argue, that the evidence shows that Crocheron was otherwise unsuitable. Counsel seems to be able to gather great consolation from the case of Andrino v. Yates, and seems to think that that case is decisive of the r question under consideration. In that case this court held: “Of course the legal rights of the parent must be respected, and the law contemplates that those rights may have been abandoned, surrendered, transferred or forfeited”; and in that case throughout this court clearly recognized *454the legal right of the parent, but held that under the facts of that case the parent had abandoned, surrendered and forfeited her right to the custody of such child. But such is •not the finding of the court or the proof in this case.
Counsel often quotes in his petition for a rehearing, as he did in his brief, that the “welfare of the infant is the polar star by which the discretion of the court is to be guided.” This expression is not intended to convey the impression that in appointing a guardian the court can ignore the requirements of the statute and appoint a person other than the father and mother, unless such father or mother are incompetent to transact their own business or are otherwise unsuitable. This expression as well as the statute does not mean that the father is unsuitable because he is poor or because he is unable to provide as palatial a home or surroundings as some other person, or because at times he indulges in the use of intoxicating liquors, or because at times he is unable to or does not pay his debts. If the court has the discretion of taking away from the parent his legal right to the custody of a child from the mere fact that the parent is poor or unable at times to pay his debts when due, or that he indulges at times in the use of intoxicating liquors, then the legal right of the parent would be of but little force, and the courts might be kept busy transferring the custody of minors from their natural guardian, the parent, to strangers.
The supreme court of California in the case of Guardianship of Salter, 142 Cal. 412, 76 Pac. 51, in discussing this question, says:
“But even if the father were poor and unable to provide for the child as competently as his grandmother could, or would be compelled to maintain him at his place of abode in Los Angeles under the circumstances found by the lower court, these considerations would furnish no legal ground for depriving him of the custody of the child. They apply merely to its material and temporal welfare, and if such considerations were controlling they could in each instance where poverty was the misfortune of a parent be invoked *455to deprive Mm of Ms cMld in favor of one more fortunately situated and better able to minister to its material comfort. Common humanity would be shocked at the serious maintenance of such a proposition.”
In this case the court finds that the father is not indigent, and is capable of properly providing for said minora and educating them; that he is not an immoral man, but he is a man of insobriety and intemperate habits, and is addicted to the use of intoxicating liquors and lacking in integrity. It will thus be seen, as stated in the former opinion, that the only finding which could be construed as supporting the conclusion reached by the court, that Crocheron was an unsuitable person to be appointed guardian, is the finding that he is a man of “insobriety and intemperate habits and lacking in integrity.” This finding, however, does not satisfy the requirements of the statute. In the first place, lack of integrity is not a legal ground for depriving a father of his child. “Integrity,” as defined in the Standard Dictionary, means: “Uprightness of character and soundness of moral principle; honesty; probity; as, his business career showed his integrity.” In this finding the court evidently did not use the word “integrity” in the sense that it meant uprightness of character and soundness of moral principle, for the court has expressely found that the father is not an immoral man. The court must have used the word “integrity” in the sense that the father was not honest in his business transactions. But we know of no principle of law which would authorize a court to take a child away from a father because there was evidence of the father’s dishonesty in his business transactions.
So, the only matter left for consideration is the finding that the father is a man of insobriety and intemperate habits and is addicted to the use of intoxicating liquors. Just what the court meant by this statement it is difficult to understand; but reading the finding in connection with the evidence, the latter shows that certain parties testified that about four years prior to the time the case was tried in the probate court the father’s reputation for sobriety was bad. *456There was some evidence that at times he became a little hilarious, but this was all. There was no evidence that the father drank to excess, or that his drinking had a demoralizing or degrading effect upon him, or that it unfitted him to associate with his children or would in any way degrade them.
Intemperance might unfit a person to have the custody of his minor children, bnt to do so it should clearly appear that the parent was so intemperate that he was an habitual drunkard, and that his conduct would have a tendency to demoralize and degrade his children. This, however, the court does not find, and there is no evidence whatever to support such conclusion. On the contrary, the court did find that the father was not immoral, and was capable of providing for his minor children and educating them. This finding, taken in connection with the finding that the father was intemperate, would clearly indicate that such intemperance did not render the father unfit to provide for and educate his children and did not result in immorality. If so, there was no legal reason why the father should be denied the custody of his children.
Petition for rehearing denied.,
Sullivan, C. J., concurs.