Under the provisions of Act 83 of (E.S.) 1921 (Dart's General Statutes, Section 1683) the Juvenile Courts of this state, outside of the Parishes of Orleans and Caddo, are vested with jurisdiction of the trial of all those charged in said courts as neglected children.
A neglected child, as defined in Section 6 of that Act (Dart's General Statutes, Section 1684), is "* * * any child seventeen years of age, and under, not now or hereafter inmates of a State Institution, found destitute, or dependent on the public for support, or without proper guardianship, or whose home, by reason of the neglect, cruelty, depravity or indigence of its parents, guardians, or other persons, is an unfit place for such child, or having a single surviving parent undergoing punishment for crime, or found wandering about the Streets at night, without being on any lawful business. * * *"
The procedure to be followed in the juvenile courts respecting neglected children is outlined in such statute's Section 7 (Dart's General Statutes, Section 1685), it *Page 495 reading in part: "* * * All proceedings against neglected * * * children shall be by affidavit made before the Clerk of Court or any committing magistrate, by any reputable person, charging thechild with being neglected * * * and briefly setting forth ingeneral terms the facts constituting said neglect * * *; andwhen made by the District Attorney, or a probation officer, maybe upon information and belief. Upon the filing of suchaffidavit, the Court, shall issue a summons to the person havingthe custody of such child, to appear with the child on the dayfollowing the service of such summons; and failure to comply with the order of the Court shall subject the person summoned to punishment as in case of contempt. Whenever it shall appear tothe Court that said summons has proven or is likely to be provenineffectual, or whenever the Court in its discretion considersit expedient, a warrant may be issued for the arrest of the person with whom the child may be, or for the arrest of thechild itself. Pending the trial, the Courts throughout theState, may permit the child to remain in the possession of theperson having the custody of said child, or may place it in thecustody of any person, association, or institution deemed properin the judgment of the Court. * * *" (Italics ours.)
The referred to Probation Officer holds his position through appointment by the Juvenile Judge, and he is invested with all the power and authority of a sheriff to make arrests and to perform other duties incident to his office. Sections 3 and 4 of *Page 496 Act 83 of (E.S.) 1921, Dart's General Statutes, Section 1681 and 1682.
On October 16, 1944, the Probation Officer of St. Tammany Parish, strictly in keeping with the procedure outlined above, filed an affidavit in the court of that parish charging the child Bertha Ann Matheny Brockner with being neglected and briefly setting forth in general terms the facts constituting the neglect. The affidavit, as the act authorizes to be done, was made upon information and belief. Whereupon the judge, as was his mandatory duty, issued a summons to the mother to appear and show cause why the child should not be declared neglected; and at the same time, under the statute's provisions, he ordered the arrest of the child who was then in the City of New Orleans and gave temporary custody of it to a person deemed proper and suitable in his judgment.
Immediately thereafter, the mother, without in any manner pleading or appearing in the Juvenile Court of St. Tammany Parish, applied to this court for the issuance of the writs of prohibition and habeas corpus, predicating her application on the sole contention that the Juvenile Court lacked jurisdiction of the cause. On the showing made, we issued a rule nisi and the writ of certiorari, thus bringing the matter before us.
Contrary to the decision rendered by us on the original hearing of the rule nisi, which was that the Juvenile Court must first pass upon the matter of its jurisdiction before relief is sought here, a majority of this court on this rehearing have determined *Page 497 and decreed that the Juvenile Court was without jurisdiction and, accordingly, have issued the writs for which relatrix prayed.
The effect of the decision on rehearing, as I view it, is to overrule the well-established jurisprudence of this state, the latest case of which is In Re Sherill, 204 La. 1096,16 So. 2d 885, that announces the doctrine that this court will not issue a writ to a court of inferior jurisdiction, prohibiting further proceedings in a case because of alleged want of jurisdiction, until a plea to the jurisdiction has been presented to and overruled by that court.
The majority opinion on rehearing gives recognition to the mentioned well-established jurisprudence and doctrine; but it declares that this case, because of its nature and the situation of the parties, is exceptional and therefore authorizes an original application to this court for habeas corpus. One of the reasons given in support of that declaration is the following: "The case, under the facts disclosed by the record, impresses us as one in which Mr. and Mrs. Jacobi, who are not related either by blood or affinity to Mrs. Brockner or her infant child, are seeking through the instrumentality of the courts and social agencies of the State to deprive Mrs. Brockner of her child in order to secure the child for themselves. Thus, the affidavit of the Probation Officer of date August 11, 1944, made solely on information obviously furnished by Mr. and Mrs. Jacobi, or both, charges that the infant child of Mrs. Brockner is a neglected child. * * *" *Page 498
Whether or not that impression or conclusion represents the true situation I am not prepared to say. It springs solely from the allegations of the application of relatrix and from certain statements made by the Probation Officer in his affidavits. There is no evidence in the record to support it, the reason being that no trial has ever been held. But I do insist that the consideration and determination in the first instance of a charge of that kind — that is one by the parent in a neglect case that some one else is trying to secure the child for himself — is for the Juvenile Court, not for this court. Similar charges are frequently made in cases of this nature, and, even if true, they do not render the proceedings exceptional to the extent of warranting our entertaining original jurisdiction. Juvenile courts certainly are capable of handling that situation originally.
In the Sherill case, cited supra, and which arose in the Juvenile Court of Caddo Parish, relatrix, a resident of Baton Rouge, charged in her application made to this court for the writ of prohibition that the action of Mrs. Delaune in signing and executing the neglect affidavit was a deliberate attempt to deprive her (relatrix) of her child's custody; and the documents attached to the application tended to support the correctness of that charge. But we refused to grant the relief requested since relatrix had not previously posed the jurisdictional question in the Juvenile Court. True, in that case, relatrix did not pray for the issuance of the writ of habeas corpus; however, we could and would have *Page 499 issued it under her prayer for general relief, or perhaps ex proprio motu, if the circumstances and nature of the case had warranted that action.
The other exceptional feature of this case, asserted by the majority opinion on rehearing, is that the affidavits of the Probation Officer do not set forth any facts constituting the neglect charged to the child, as is required by the Juvenile Court statute. In the Sherill case, cited supra, relatrix, in her application to this court, contended that the affidavit did not charge the existence of any one of the numerous conditions set forth in the statute by which a minor is judicially determined to be a neglected child. Our answer to that was: "* * * Even if it be conceded that Mrs. Delaune's affidavit is defective as relator claims, we are now powerless to grant the relief for which she prays; this is because of her failure to raise the jurisdictional question, and obtain a ruling thereon, in the court of first instance."
Besides overruling the prior jurisprudence of this state, as above pointed out, the majority decision on rehearing, in my opinion, constitutes an implied invitation to anyone hereafter challenging a juvenile court's jurisdiction in a child neglect case to invoke the original and supervisory jurisdiction of this court without obtaining a ruling on the jurisdictional issue in the inferior court. I cannot and will not lend approval to that.
For these reasons, and for those assigned in the opinion rendered on the original hearing, I respectfully dissent. *Page 500