(dissenting.)—The petitioner was arrested, imprisoned and restrained of his liberty, by the Sheriff of Duval County acting under a warrant which issued out of the Criminal Court of Record for that county, upon an information filed in that court by the County Solicitor, which contained the following allegation : That E. E. Robinson of the County of Duval and State of Florida on the 2nd day of April, 1917, in the county and State aforesaid, “being the owner of a certain automobile and other motor driven vehicle, did use and operate the same in said State and county more than fifteen days, without paying the county license tax required by law, said automobile and motor driven vehicle not being used and operated for hire.and charge,” contrary to the form of the statute, etc. The petitioner-applies to this court for discharge upon a writ of habeas corpus on the grounds, among others, that the information does not charge any offense against him known to the laws of this State; that the information does not charge the petitioner with operating the automobile upon the public roads or highways of the State; and that the title of Chapter 6881 Laws of Florida, 1915, upon which the information is based, limits the requirements of a license for an automobile or other motor vehicle to- such vehicles as are used upon the public roads or highways of the State.
It is the view of the majority of this court as expressed by Mr. Justice Wi-iitfield, that the petitioner should be remanded. With that view I am unable to agree, and as the matter involves a right so sacred as the personal liberty of a citizen, I think it is proper to submit the reason *1089which moves me to a conclusion different from that reached by the majority.
It is not denied that in this jurisdiction habeas corpus will lie for the discharge of ohe who is imprisoned for an act which does not constitute any offense known to the law. See Ex parte Hays, 25 Fla. 279, 6 South. Rep. 64; Ex parte Bailey, 39 Fla. 734, 23 South. Rep. 552; Ex parte Prince, 27 Fla. 196, 9 South. Rep. 659; Lewis v. Nelson, 62 Fla. 71, 56 South. Rep. 436. It is true that a writ of habeas corpus cannot be used as a substitute for a demurrer, a motion to quash, a writ of error or an appeal or certiorari, as was said in Mooneyham v. Bowles, 72 Fla. 259, 72 South. Rep. 931. See also the authorities therein cited. : But it does not follow that because a question may be presented by demurrer or a motion to quash or upon a writ of error, that habeas corpus will not also lie. ' If one is indicted and even tried and convicted of an offense denounced by an unconstitutional statute, the conviction is not merely erroneous and may be reversed on writ of error, but is illegal and void, and cannot be a legal cause of imprisonment. In such case habeas corpus would lie. See Ex parte Knight, 52 Fla. 144, 41 South. Rep. 786. One may be committed upon a trial for conduct which in law constitutes no offense ; in such case although a motion to quash the information, or arrest of judgment would lie, yet not since Bushnell’s Case, 6 Howell’s State Trials, 999, decided in 1670, has it been denied that habeas corpus would lie for his release. It is stated in Bacon’s Abridgment: “If the commitment be against law, as being- made by one who had no jurisdiction of the cause,''"or for a matter for which by law no man ought to be‘punished, the courts are to discharge.” The latter part of this rule, said Mr. Justice *1090Bradley of the Supreme Court of the United States in Ex parte Siebold, 100 U. S. 371, “when applied to impris-, onment under conviction and sentence is confined to cases of clear and manifest want of criminality in the matter charged such as in effect to render the proceedings void.”
In Ex parte Prince, supra, Mr. Chief Justice Raney speaking for the court and citing the cases of Ex parte Kearney, 55 Cal. 212; In re Buell, 3 Dillon, 116, said: “It is unnecessary to say more of these cases than that they are founded upon the theory that an indictment alleging as a criminal offense that which is not made so by the law obtaining' at the time the act was done, confers no Jurisdiction to hear'and to determine, and that a detention of the person under such circumstances may be relieved against by this writ as one without jurisdiction; that if there is no law punishing the act, there can be no jurisdiction to detain or try. 2 Hale’s P. C. 144; Bac. Abr., habeas corpusIn that case the court pointed out, however, that the doctrine announced should' not be^ confounded with, nor be permitted to invade the rule that the writ of habeas corpus is not the proper remedy for relief against “defective indictments for acts which are offenses under criminal laws.” It is conceded that errors and irregularities not jurisdictional will not be examined or inquired into on habeas corpus, but questions affecting the jurisdiction of the court may be inquired into in such a proceeding. It is this distinction which the majority opinion seems not to regard. If the information charges the petitioner with acts which are not punishable as a public offense there was no jurisdiction to detain and none to try him. The allegations.of the indictment or information determine the jurisdiction of the court. If there is no criminality in the act charged there is no jurisdiction *1091to detain the petitioner. It is utterly immaterial that this question may be presented by demurrer, motion to quash or in arrest of judgment, or may be presented on writ of error. The petitioner is entitled to his liberty and of course may have the writ, for that purpose, if the act with which, he is charged constitutes no offense against the State. The act of the legislature upon which the information rests imposes a license tax upon the owner of an automobile or other motor driven vehicle who has used the same for fifteen days upon the public roads or highways in the State of Florida. See Jackson v. Neff, 64 Fla. 326, 60 South. Rep. 350, in which this court, speaking through Mr. Justice Whitfield, said: “The license tax here imposed is manifestly for the privilege of using motor driven vehicles on the public roads in this State.” The failure to pay the tax is made a misdemeanor.
If to charge that one used and operated an automobile in this State for fifteen days without paying the license tax is equivalent' to an allegation that he used it upon the public roads and highways for that time, then the'information charges an offense, the jurisdiction of the court exists and the petitioner should be remanded to custody. But if use of the vehicle upon the public highway is a necessary element in the offense of failing to pay the license tax by the' owner or operator and is not nec* essarily implied in the words use and operation, or “did use and operate,” then it is equally clear that the information charges no offense. The body of the Act, Chapter 6881, Laws of Florida, 1915, does not contain the words public roads and highways' in requiring the payment by owners and operators of automobiles'of a license tax, but the title of the act limits the imposition of the license tax upon motor driven vehicles using the public roads or *1092highways. So that, if the title of the act was not a part of it, the act would be subject to the criticism that it was broader than the title, because it is conceivable that one may be the owner of an automobile and use it in this State for fifteen days without using it upon the public highway.
This is not a case of an attempt to charge a crime as the majority opinion assumes, nor is it a question’of a lack of certainty or other defect in the statement of the facts averred to constitute a crime, but it is a case of failure to charge facts constituting an offense. It is no answer that the petitioner has an intimation from the document under consideration that the State is trying to punish him for using his automobile on the highway without paying the license, he has the right to demand the nature and cause of the accusation against him, and so far as this statute is concerned is entitled to his liberty until he is charged with the offense of using his automobile upon the public highways for fifteen days without paying the license tax required by the act.