*1 271 note to erty right authority transferor or to transfer the showing right its plaintiff case, in this the note on face in the transferor. rehearing Quillian, J.,

Motion concur. Bell, J., denied. P. v. et al. 43671. MAYOR &c. ATLANTA WILLIAMS OF Judge. tried Appellant, an Atlanta policeman, Eberhardt, police before the committee of the board of aldermen charges violating regulations police depart- rules and of the appellant ment. was charged, alia, inter violated Security department Rule 5 of the Internal Division by refusing give the name of an informer to a lieutenant having previously division after him of in- advised formation received from wrongdoing the informer of on the part of certain police provides officers. mem- Rule each 5 ber of department (concerned must furnish the division investigation conduct, etc. of honesty, morale, policemen) with possession all information in their which the division required investigation determines to be its matter involving department.

Upon being discharged guilty found committee, ap-

pellant application filed his Superior certiorari in the Court County. appeal This overruling Fulton follows the of that application. Held: Appellant admits identify that he refused to the informer but public

contends that policy because required he was not to do so and that authority was therefore no for his discharge which, County under Deason v. Sys- DeKalb Merit tem Council, (138 110 Ga. App. 183), 244 SE2d must be held to be arbitrary, indiscriminate and void. general government may privileged aas rule the

While identity of informers refuse to make who furnish relating (see 38-1102; violations of information Code § Morgan (84 365); v. State, 211 Ga. 172 SE2d Anderson v. App. (34 Crosby State, 110); State, v. 72 Ga. 487 SE2d Ga. 90 App. (82 38); Roddenberry State, App. v. 66 63 SE2d 90 (82 Hodges (7) (104 40); State, v. SE2d SE2d 98 Ga. 97 704) (rev’d (106 795); grounds, on other SE2d 214 614 Staggers (5) (114 142); v. State, App. 463, 101 Ga. 465 62); LE2d Illinois, SC

McCray 386 U. S. 1961); rev. (McNaughton Evidence Wigmore, § Annot., 76 Supp.); AmJur, Cum. Witnesses § authority to sustain have been cited no ALR2d *2 refuse to dis police privileged a officer is to proposition that the superior officers in identity of an informer his close the to If of the workings department. purpose internal the the en privilege protect public is interest effective law to the (see (77 1 S., forcement Roviaro v. U. SC S. U. 353 53 (330 33); 639); People McShann, v. Cal. 2d P2d LE2d (Fla. Hardy 344), or, Wigmore App.), S2d suggests, if situation is one applies it the where "wherever encouragement special in this the citizens who have without might a violation of law be deterred otherwise formation of (8 voluntarily reporting appropriate the official” from to to Wigmore, supra, at the record fails demonstrate for to the facts of this case. need the extension rule Nothing contrary assume that the appearing, the we would protected interest in effective law enforcement is better making relating sup of all full disclosure information posed wrongdoing police officers to the division created investigate Accordingly privilege” such matters. “informer protect appellant against re Rule which but a is policeman’s obligation general statement of under law. hearing (a) complains of the fact that before Appellant night, “unseemly held an police committee was at at prefer getting their people hour.” most would work While during day nothing illegal a day, shift, done on night holding a or of about session court validity body judgment. and this does affect of its 987). (3) appears Farmer v. State, 91 Ga. SE of other session, disposing the committee been cases during or matters preceding evening, appel- reached lant’s case in a.m., due course about when it was called 12:50 hearing. hearing beginning of (b) Police Committee At the following colloquy occurred: “Mr. Edwards: would like I my is the a at this time. This first time in to make motion a practice hearing have ever been in to be started I morning. really it is ten minutes to in the feel like at 1:00 I including imposition everybody, the members an this a time. The Chairman: Mr. board, start Edwards, people here, they have all of we sat long, objection, this has no us all and if the committee going sir. dispose right, this matter. Mr. Edwards: All all witnesses, would like to ask the rule of Mr. I Chairman.” a motion for con- colloquy

It is contended that this amounted to proceed tinuance and that the decision the committee to overruling was in effect the motion.

This merit. party contention is without In order for a success

fully ruling complain which he contends to have been a denial of continuance, he be able to must show formal proper motion in record as the basis of the asserted error, is technically construed. Trammell v. State, (1) (189 529); Ga. 711 SE Atlantic C. L. R. Co. v. & Co., (1, 2) 572); Cohn 4 Ga. SE Leverett, Hall Georgia & Christopher, Procedure & Practice 14-9, § *3 p. (1957). colloquy appears to The here be similar to occurring (2a) Kittle v. Brown, Ga. “ ‘upon call case, SE where the defendant’s counsel stated client that his was sick and unable attend court and that he desired to make motion to said continue ” case,’ observing the court that “the defendant’s counsel made no motion for continuance, merely but stated that he desired to make such a only motion.” Not was no con motion for actually tinuance formally and case, made no but reason given why was proceeding with the hour, albeit appellant. unusual, would harm Since there was no formal proper and motion for continuance showing harm, no appears error in this compare connection. And Farmer v. State, 91 720, supra, holding night that a session of court is illegal. no There is merit in the

3. contention that the trial court’s sus- taining of appellant’s exception number 11 to respondents’ petition answer the for certiorari as established law of the the proceedings case that the conduct of the illegal. was The exception of go thrust the to the answer as a whole, and sustaining construe the order exceptions striking the as only paragraphs setting the forth affirmative matters but leav- ing paragraphs intact admitting denying the or paragraphs of the petition. certiorari

4. Error upon is allowing enumerated of Chief Police

and city’s attorney to remain in executive session with the pro- department’s 11, which Rule

committee, contrary charged Department of of member : “In the trial vides regulations Depart- the rules and violation of with the heard, been testimony argument and ment, after go into exec- the committee shall cleared, room shall be is formed.” decision utive session before the inwas, appellant that Chief of Police position he and that when effect, prosecutor before the committee it was tanta- permitted to remain in the executive session case; upon having prosecutor judgment sit in mount to his com- city’s attorney duty urge before the that the had the position and contentions of the Police mittee the Chief executive permitted and that when to remain in the he was having prosecutor’s re- session it was tantamount opportunity advocated no afforded committee, appellant replying. charges in which were dealt with Many cases have situations itself, agency a committee preferred held to violate no con- member. This has been some right presumption or to unfairness stitutional raise Examiners, Board proceedings. of Law McVicar Clary v. Mathews, E2d But see 338). acting spectacle “The of an administrative tribunal prosecutor subject much com- judge both has been the away ment, practice to do with such efforts Appeals is an outstand- Board of Tax years. studied has never But such successful effort. ing example of one right. constitutional On procedure such denies held that been *4 agencies years, functioned for many contrary, these roles. courts, of which combine approval investigates charges of business Federal Commission Trade plaintiff, charge in own name immorality, files its charges it has proof sustains the whether the then decides Commission and Commerce preferred. The Interstate complaints to be may prefer Commissions Public Service may tribunal themselves. tried before If try complaint, and then its file a investigate, on own initiative be- charge preferred, process due is not denied here so of aided in the investi- cause one or more members the Board Compare gation.” Brinkley Hassig, 351, F2d (c). U. S. C. 1004 (5) City Atlanta,

The situation in Heath v. of 746) appears substantially same presented examined the rec- However, as that here. we have petition appear, ord Heath and it does not either from the for certiorari, answer, the committee’s otherwise that was in at the time of the committee hearing force making provision that case or ordinance for rule committee’s executive session in consid- connection with eration making judgment. of its That evidence matter was, not before court in the Heath case. therefore, enough force provisions 11, clear from the of Rule It seems present that its terms heard, when the required clearing room of all those make save who committee, provision unless some or ordi- up the of law are remain session,— nance others entitled to in the executive and we find none. of Police been an ex- If Chief officio provisions member under the some the committee ordinance, question might presented; different but that appear, requires no ruling at this time. any ruling Nor do we make city’s attorney as whether the provision a different basis if there stands were for his re- maining in session purpose giv- with the ing legal advice. City Heath v. Consequently, Atlanta, 67 App. 85, supra, distinguishable from this case, and does not require a different result.

We realize that this reversal will send the matter back to the

very same but, committee, so, even with observance of the rule when the time making comes for the of its decision in executive person session there will be no in the room with the commit- presence tee whose mere is calculated to free stifle discussion and to exert some influence upon what the result is to be. of error remaining 5. The enumerations merit. without Judgment P. Bell, J., reversed. Jordan, J.,P. Pannell, Deen and

Whitman, concur. C. JJ., Felton, J., and Quillian, J., concur specially. Hall, J., concurs in the judgment. Argued May July 6, 19 6 8 1968 Decided

Rehearing July denied Beryl Weiner, for appellant. H.

Henry Bowden, Ralph L. C. Jenkins, appellees. Judge, concurring Chief specially. think

Felton, that what *5 I in amounts to the defendant stated for the counsel postponement or a a continuance motion for to a law or could that counsel was It is inconceivable trial of the case. This conclusion referring anything else. stands to surplusage, but argument would be Any additional reason. that committee ruled that the chairman may be observed objection. the committee had no What proceed trial would if parties, lawyers, rights object, others about —the ago years the Hebrews a the witnesses? Two thousand mind, forbidding night. a trial the one occasion I have in at On begun trial at a.m. the law not observed and was Georgia forbidding a specific law in trial at written There is illegal which make one under are other rules night but there ones, attempting to name additional of this case. facts Without overriding, policy. are common sense and principles two begin enough facts, for me. a five-hour They are Under humanity dictates of reason a.m. violates the trial about 1 counter-compelling why reasons it was neces- in the absence of justice public policy proceed in sary the interest miscarriage prevent justice. such time cases cited proposi- opinion authority majority my are “all” especially the sought sustained, to be statement tion technically Making the construed. motions for continuance are beyond reason, so the bounds technical judgment also re- my opinion. humble think the should I begin trial at hour. versed because of the failure to sensible majority think that the cases as to this I do not cited point applicable this case. Judge Quillian concurs in this state am authorized to

I special concurrence.