Hill, J.
(After stating the foregoing facts.) The act of 1919 (Acts 1919, p. 387) provides: “That from and after the passage of this act that the jury in their verdict on the trial of all cases of felony not punishable by life imprisonment shall prescribe a minimum and maximum term, which shall be within the minimum and maximum prescribed by law as the punishment for said crime, and the judge in imposing the sentence shall commit said convicted person to the penitentiary in accordance with the verdict of the jury; provided that in cases of pleas of guilty, then the judge shall have the right to prescribe such minimum and maximum term as he may see fit. The Prison Commission shall fix rules by which said convict, after serving the minimum sentence, may be allowed to complete his term without the confines of the penitentiary upon comph'ing with said rules.” It appears from the petition, the substance of which is set out above, that at the time the petition for habeas corpus was brought the petitioner had not served the max*801imum sentence imposed by tbe court in the felony case, but had only served the minimum sentence of two years. It also appears that the plaintiff had paid the fine in the misdemeanor case at the expiration of the two years of service under the felony sentence. But there is nothing in the petition alleging facts which show that the Prison Commission has adopted rules providing for the parole of convicts in such eases, and, if so, whether the plaintiff’s case falls within those rules. Neither is there in the petition anything to show that the plaintiff has ever made application to the Prison Commission for a parole under such rules as it may have provided. And it will be observed from reading the act of 1919, supra, that the Prison Commission is the tribunal which has been designated by the act to prescribe rules by which convicts may be paroled. Nor does it appear that the Prison Commission has of its own motion passed an order granting the convict a parole. And there is nothing in the act of 1919, or in facts alleged in the petition, showing that there is any law or rule of the Prison Commission entitling the plaintiff in the present case to a parole at the expiration of the minimum sentence, without having complied with such rules of the Prison Commission, if any. In the absence of an allegation in the' petitipn and proof in support thereof, that the Prison Commission had exercised the power conferred by the act of 1919, by adopting rules in conformity therewith entitling the petitioner to a parole, and that the petitioner’s case falls within the provisions of those rules, he would not be entitled to a parole, much less to a discharge. The petition shows that he has eight more years of the sentence to serve. In the absence of such allegation in the petition as would entitle the petitioner, if the allegations were sustained by proof, to a discharge, the petition fails to set forth a cause of action, and should have been dismissed on motion.
Prom what has been said above it follows that the subsequent trial of the case was nugatory.
Judgment reversed.
All the Justices concur, except Bussell, 0. J., dissenting.
Hines, J., concurs specially in the judgment.