(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.

dissenting. From the opinion of the majority I dissent quoties toties. The petition for habeas corpus, in my opinion, withstands the demurrer urged against it. As has more than once been ruled, niceties of pleading and technical distine*802tions aré not to obstruct tlie progress of a ease where'a prisoner stands before a court having jurisdiction of his liberty. This petition alleges that the petitioner was sentenced under two charges, one a felony and the other a misdemeanor ; and it shows that the sentence of the court has been complied with. It alleges that under the felony conviction a sentence was imposed of a maximum of ten years and a minimum of two years. It alleges that he has fully completed the -minimum sentence of two years. Under the law as I understand it, a convict at the expiration of his minimum term of service is presumptively entitled to relief from the service of the maximum sentence, unless under the rules of the Prison Commission he is deprived’of that benefit. The burden of proof is upon the party attempting to restrain the convict; and in the absence of any allegations in the petition which would defeat the application, it is not subject to demurrer. Upon the trial of the ease, the petitioner having proved the allegations of the petition, having served -the minimum sentence imposed upon him, and nothing being shown which debarred him from the pardon, and there being no evidence upon this subject, the learned trial judge properly discharged the applicant. No injury results to the respondent or to society; for it is still within the power of the Prison Commission to arrest the applicant at any time within the term of his maximum sentence for any violation of its rules of parole.