In re Wheelin , 26 W.N.C. 72 ( 1890 )

Opinion,

Mr. Chief Justice Paxson:

The petitioner complains that he was refused a bottler’s license by the court below. It appears by his own showing that a remonstrance was filed against .his application upon the ground that he was not a person of good moral character, to which he filed an answer denying the allegations in the remonstrance ; that, upon the day fixed for a hearing, he did not appear in person, but appeared by counsel, whereupon the court below said: “ The court is of opinion that the petitioner is bound to appear for the purpose of examination concerning the issue raised by the petition and remonstrance. In this case, a remonstrance has been filed, and I now understand you to say that your client declines to appear in court. In fairness to him, as nothing has been said on the subject, we will give him until to-morrow to appear. If he does not appear then, his petition will be dismissed. Until his appearance, we will not hear your witnesses.” The petitioner declined to appear, and the court refused his application.

It will thus be seen that, if the petitioner was not heard, it was his own fault. He was only willing to be heard in his own way, and upon his own terms. There was an issue of fact before the court, and the learned judges of the Quarter Sessions were of the opinion that his personal appearance was necessary to its proper determination. They had a right to examine him as to this issue, and as to the facts set forth in his petition, and could have compelled his attendance had they desired to do so. Although no process had been served upon him, he was practically in contempt; and, while he could not have been punished by attachment, he was properly punished by a denial of his application.

We regard the action of the court below in requiring his personal appearance as reasonable and proper, and it was not in any sense a denial of any legal right. The petitioner was not a litigant, in the ordinary meaning of the term. On the contrary, he was asking for a privilege to which he had not any legal right, and which he could only obtain by a strict compliance with the law, and the reasonable rules and regulations of the court below in regard to the hearing of his application. That court is entitled to all the light it can get in such cases. They are, at best, performing a difficult and thankless duty, not in a strict sense judicial in its character; and no obstacles should be thrown in their way when they are seeking for the truth in a legal manner. We think they were doing so in this case. It is to be observed, also, that the petition below contains no averment that the petitioner is a man of good moral character and of temperate habits. The petition might well have been dismissed upon this ground, without more.

Writ refused.