By the Court.

delivering the opinion.

The members of the fire company all resigned,- and in their places, the City Council .appointed new members. If the Council had power to make this appointment, the plea was insufficient, and the decision' holding it insufficient was right. This is clear.

The question, therefore, is, did the Council have the power to make this appointment ? »

Whatever power the Council had on the subject was derived from the Act of 1834, “to incorporate the Fire Company of the City of Savannah,” the third section of which Act is in these words: “ That said corporation shall elect their officers in the manner pointed out in the ordinances of the City Council of Savannah, and that nothing in this Act shall be so construed as to make said fire company, independent of the City Council, but that it shall continue to be subject to the same control of the City Council as that body has heretofore exercised over it.” Pamph. 1834, 131.

These words must mean, either, 1st, that the power which the Council was to have over the fire company, after its in*681corporation, was to be the power which the Council had actually “ exercised” over the company, before its incorporation ; or 2dly, that the power was to be the power which the Council had possessed over the company, before its incorporation, whether the power had ever been exercised or not.

Supposing the first, the meaning, the question will be, what power had the Council actually “ exercised” over the company, before its incorporation ? or, to speak more definitely, the question .will be, whether the Council had ever exercised over the company, before its incorporation, a power like this which they exercised over it, after its incorporation; that is, whether they, of their own mere will and pleasure, ever appointed all the members of it at once.

And we find, that, at the origin of the company, the Council did a similar thing. The company was created out and out, by the Council. They appointed all of its original members. They did so on their own motion and volition. And they had the right to do so. The Act of 1824, “ to establish an engine company, in the city of Savannah,” and the Act of 1825, amendatory of that Act, gave the Council this power. (Daws. 458,462.)

If then the meaning of these words in the charter, be, that the Council was to have, over the company after its incorporation, the same power which they had actually “ exercised” over the company, before its incorporation, then, the Council had the power to make the appointment in question, for it had made a similar appointment, for the company at its origin.

But suppose the second be the meaning; viz, that the Council were to have the same power over the company, after its incorporation, as they had possessed over it, before its incorporation.

Then, the question will be, did the Council possess over the company, before its incorporation, the power to make such an appointment as the one in question.

The power of the Council, in this respect, was derived *682from the two Acts aforesaid — of 1824, and 1825. The first section of the Act of 1824, is in these words: “ The corporation of the city of Savannah, shall have power and authority, and they are hereby empowered and authorized to nominate, select and appoint, certain individuals, being free white persons, and not exceeding twenty-one in number, and who, when so appointed,- shall be known as the Engine Company of the City of Savannah.”

The meaning here must be, that the Council might appoint twenty-one persons to form the company and might afterwards keep this number full, by supplying vacancies that might happen in it. This is the meaning — on which the practice has ever proceeded.

This being the meaning, it is clear, that the power thus conferred on the Council, if it remains undiminished, was sufficient to justify the appointment in question.

Has that power been diminished? It is not pretended, that it has been diminished by any Act of the Legislature. But it is insisted, that the power has been diminished, by an ordinance of the Council itself; the ordinance of 1825, in these words: “whenever any vacancies shall occur by death, resignation, or otherwise, in the said company, .it shall be the duty of the members, immediately, to nominate a proper person to fill such vacancy, such nomination to be made from citizens, not under twénty-one, nor over fifty years of age, and the chief fireman, or commanding officer, shall immediately communicate such nomination, to Council, who shall reject or confirm the same.” (Ordinances, 162.J

What this ordinance says, is, that it shall be “the duty” of the members to nominate — not, that it shall be their right to do so. Is that any restriction of the Council’s power to -fill vacancies ? The council have the unlimited power to fill vacancies. They ordain, that it shall be the duty of the members, to nominate to them, “ proper persons” to fill vacancies, when these occur. Is this saying, that the Council relinquishes the right to fill such vacancies, until such nom*683ination be made ? Suppose an ordinance had said, that it should be the duty of the city Marshal, to hand in a list of persons suitable for city printer, city surveyor, and for the various other city officers; and, that the appointment of these officers, should be made from the list, would that ordinance confer on the Marshal, the right to present this list, and at all diminish the power of the Council, to make the appointments, in the absence of the list ? 1 much doubt it. And so I doubt, whether, this ordinance making it the duty of the members of the fire company, to nominate to vacancies in the company, at all diminished, the right of the Council to fill the vacancies, without such nomination.

And then it is a serious question, whether the Council has the right to pass an ordinance which would thus diminish its own power.

Supposing, however, that the Council has, and that they intended to diminish this power by this ordinance, the question still remains, to what extent, did they intend, so to diminish the power ? Did they intend, that the power to fill the vacancies should not exist at all in the Council, unless a nomination to the vacancies, was made by the company; or did they intend more, than that the filling of vacancies by the Council, should be exclusively made from the nominations of the company, provided, the company would do its “duty,” and make nominations? Surely it is going far'enough, to say, that the Council could have intended as much as the latter. We think it is.

The result then, is, that, we think, that the City. Council did have the right to make the appointment in question, and therefore, that the Court below was right, in holding the plea to be insufficient.

Judgment affirmed.