It appears from the petition for a writ of prohibition that Arthur Treppa is charged by an information, filed in the Justice’s Court of Township Number Three of Lake County, with having sold liquor to one Byron Augustine, a full-blooded Indian.

This information is purported to be based upon the provisions of section 397 of the Penal Code, the portion material to this decision being in the following language:

The force of petitioner’s objection will be seen in comparing the allegations of the complaint with that of the language in the section just quoted; the complaint alleging “that said defendant Arthur Treppa, at said time and place did unlawfully furnish to Byron Augustine, liquor, to-wit: beer containing more than one-half of one per cent and not more than three and two-tenths per cent of alcohol by volume, the said Byron Augustine being then and there an Indian of the whole blood”, which omits the direct allegation found in the statute of the intoxicating quality of the drink.

It is urged that the complaint therefore does not state any offense known to the law, and the trial court being about to exercise jurisdiction in an unauthorized proceeding, creates a situation wherein prohibition is the proper remedy.

We were at first disposed to the opinion that the justice’s court had jurisdiction to proceed and that if error were committed petitioner still had a plain and speedy remedy at law adequate in the premises. Inasmuch, however, as the only right of a defendant in the justice’s court, according to section 1429 of the Penal Code, is to enter a plea of guilty or not guilty, it is apparent petitioner has no opportunity to challenge the sufficiency of the complaint prior to trial and the remedy is not, under these circumstances, adequate. In Ex parte Hayter, 16 Cal. App. 211 [ 116 Pac. 370 ], this court, speaking through Mr. Justice Hart, said:

The question for determination, therefore, is whether it can be said as a matter of law that liquor, to wit, beer containing not less than one-half of one per cent nor more than three and two-tenths per cent of alcohol by volume, is intoxicating. We doubt if a court has the power, in the absence of legislative definition, to fix the intoxicating quality of liquor as a matter of law. The legislature has not exercised its right to so prescribe what is intoxicating, nor to declare whether the use of the word “beer” or “liquor” of itself connotes any intoxicating alcoholic content.

As was said in In re Simmons, 199 Cal. 590 [ 250 Pac. 684 ], that in order to make enforcement of the prohibition of the traffic in intoxicants effective, the legislature as a matter of legislative expediency might prohibit traffic in beverages which are near to intoxication, even though they are not in themselves intoxicating, but when this twilight zone of expediency is invaded by the legislature it does so only for the purpose of facilitating the enforcement of its prohibitory legislation. In the language of the court it is there said:

The function of the courts is to declare the law, and not to make it. Section 1858 of the Code of Civil Procedure, laying down the general rule of construction, says:

There is nothing in the language of the complaint nor in the statute itself that will enable a court to hold that liquor of an alcoholic content of less than three and two-tenths per cent is intoxicating as that term is used in the statute in question. The legislature not having declared that beer of such alcoholic strength is intoxicating, it is necessary in order to charge a person with a violation of section 397 of the Penal Code, to allege that the liquor furnished was intoxicating, and upon the trial to prove that it was intoxicating in fact.

We are therefore of the opinion that the complaint before us states no public offense, and the writ prayed for should be granted, and it is so ordered.

Plummer, J., and Thompson, J., concurred.