On the refusal of the District Court of Sabine Parish to issue the writ of habeas corpus, relators invoked our supervisory jurisdiction, seeking the writ of mandamus, to compel that court to issue it. Hence, we are called upon to determine here whether or not the judgment of the district court, dismissing the habeas corpus proceedings, was correct.
If this were a case involving simply and merely the right of a natural parent to her child, her resorting to a habeas corpus proceedings in the district court for the purpose of regaining its custody would be proper. The instant matter, however, presents something more than that; it is quite different. Here, adoption proceedings in the Juvenile Court of Sabine Parish had been instituted, prior to the filing of this *Page 930 suit, by the respondents who enjoyed the actual custody and control of the child, as well as consent for their adopting it, given to them by the child's mother in a written instrument.
After the commencement of the adoption proceedings, and while it was pending, only the Juvenile Court of Sabine Parish, in my opinion, had jurisdiction of the child, especially the matter of its custody. According to Article 7, Section 52 of the Louisiana Constitution of 1921 (as last amended by Act 198 of 1938), the juvenile courts of this state are vested with jurisdiction "in all adoption proceedings of children under seventeen years of age." If the district court had assumed jurisdiction, that provision of the Constitution would have been contravened. And for us to hold now that the district court should have issued the writ of habeas corpus is to nullify such constitutional provision and render juvenile courts powerless to act in adoption cases.
Furthermore, since the juvenile court had exclusive jurisdiction, the district court not only lacked jurisdiction but also it was without right to issue the writ of habeas corpus. In Article 7, Section 2 of the 1921 Constitution, it is said:
"The Supreme Court, the Court of Appeal, and each of the judges thereof, subject to review by the court of which he is a member, and each district judge throughout the State including judges of the Civil *Page 931 and Criminal District Courts in the Parish of Orleans, may issuewrits of habeas corpus, in behalf of any person in actual custody in cases within their respective jurisdictions; * * *." (Italics ours)
The phrase "within their respective jurisdictions" modifies or refers to the word "cases," not the word "person." State ex rel. Steen v. Wade et ux., 207 La. 177, 20 So. 2d 747.
A determination by the juvenile court of the right of the relatrix to the custody of her child need not be deferred until the conclusion of the adoption proceedings, as the majority opinion suggests would occur if the writ is not issued. That question, as well as the incidental one respecting the sufficiency of the written instrument by which relatrix gave to respondents custody of the child and consent for its adoption, could be immediately decided through a trial of the opposition that she filed in the adoption proceedings. And to insure an immediate hearing on that opposition, the supervisory powers of this court are at her command.
My opinion is, therefore, that the district court correctly refused to issue the writ of habeas corpus, it being without jurisdiction and without right to do so.
I respectfully dissent.
HAMITER and HAWTHORNE, J., dissent from the refusal to grant a rehearing. *Page 932