On Rehearing.
It is argued by appellee, in application for rehearing, that Section 12 of the Act creating the State Board of Pardons and Paroles (supra, 430) vests said Board with “authority, upon revocation of a parole, to require the prisoner to serve all of the time remaining when he was released on parole.” This would be to hold that the Board is vested with exclusive authority of determining whether or not a parolee, upon revocation of parole, be allowed the time served while on parole to apply as a credit on his term of servitude. To so-hold would be in conflict with the law, already pronounced on the subject, as well as contrary to the evident meaning of the statute. The Board has no discretion in *478this regard except to shorten the term of punishment if it should so desire.
Under the Parole Act, no.w existing’, a paroled prisoner endures a part of his punishment within prison walls and a part thereof within the terms of his parole. When the sum total of these two punishments equals that fixed by the sentence, the question of his release is not for the Board, but he must be discharged. Clark v. Surprenant, 9 Cir., 94 F.2d 969. Anderson v. Corall; People v. Hunt, and United States ex rel. Nicholson v. Dillard, all supra.
Such a conclusion is not only harmonious to decisions construing similar acts in other jurisdictions, but, likewise, is wholly consistent with Section 12 of the Alabama Act, where it is provided that the Board, for cause, may “declare such prisoner to be delinquent and time owed shall date from such delinquency.” Under its provisions the Board may, after this declaration of delinquency, require such prisoner to serve such time as is then unexecuted (“or such part thereof as it may determine”), of course, allowing the prisoner as credit, on the remaining part due to be executed, the time already served, whether outside or inside of prison, to be “calculated from the date of delinquency.”
In this cause the appellant was declared delinquent by the Board on February 13, 1940. Subsequent to said date and since the Act under discussion became effective, he had already endured the maximum sentence imposed upon him. The Board, at that time, had, therefore, lost control or jurisdiction of the prisoner and he then stood discharged by operation of law.
The application is overruled.
Opinion extended and application overruled.