dissenting. I yield to no living man in the intensity of my individual personal contention that every citizen who is entitled to vote has the right to cast his ballot-for whomsoever he pleases, and that any citizen may be proposed as a candidate for any office for which his name may be presented, either on his own motion or at the instance of any citizens who may desire his election. This is in accord with the spirit of American institutions, and in my opinion the perpetuation of these principles depends entirely upon our adherence to this democratic doctrine.
However, in the rendition of judicial decisions the personal views of a judge cannot be. of any consequence when the law is plain. If the question of the uncoustitutionality of the local laws relating to elections in Savannah were anywhere presented in the record in this case so that this question could be properly adjudicated, I think I should hold them unconstitutional, and the same result would then be reached as that which has been obtained by my colleagues. This record does not present any question of-the unconstitutionality of the local election laws referred to, and for that 'reason the question cannot properly be adjudicated at this time. So far as I am aware, nothing is better settled than that a court cannot decide a question not presented in the_ record. I have no reference to the well-recognized rule that where a case can be decided without consideration of any constitutional question involved, the court will abstain from the determination of the constitutional question; but what I mean to say is that no court will, volunteer a decision upon a proposition which is not invoked by the record. Such a practice would, in my opinion, tend to depreciate the impartiality of the court in the public estimation. What I am saying is not uttered in the slightest spirit of criticism, but merely because, though I have the greatest respect for the opinion of my colleagues, I have a fixed conviction upon the rule of adjudication to which I have referred which embraces all cases subject to review, and in my opinion the record does not present the question of the unconstitutionality of the local act referred to. The decision depends on the question made by the record and for that reason I cannot assent to the conclusion reached by my brethren.
The General Assembly has provided a comprehensive system for the election of the mayor and aldermen of the City of Savannah. *204Section 6 of the act of August 12, 1914 (Acts 1914, pp. 1175-1176), is as follows: “ Section 6. Be it enacted by the authority aforesaid, that no person shall be entitled to become a candidate in the next succeeding regular municipal election in said city for mayor and aldermen, or recorder, who has not been nominated by a political party of the description aforesaid at a primary election held under the terms of this act, unless any person desiring to enter in said next succeeding municipal election as an independent candidate for mayor or alderman or recorder shall, within five days before said general election in said city, file with the clerk of council of said city a petition endorsing his candidacy, signed by not less than one third of the persons registered and qualified to vote in the next succeeding regular municipal election. No votes shall be counted for any person who has not been so nominated by said party, or for any independent candidate who has not filed the petition aforesaid. And if it should appear at any time that the petition of any independent candidate does not contain the names of at least one third of the registered voters fully qualified by law, said candidate shall be ineligible and the election of any such candidate shall be null and void.” By this act no vote shall be counted for any person who has not been so nominated by his partjq or for an independent candidate who has not filed the petition required; and if it should appear at any time that the petition of any independent candidate does not contain the names of at least one third of the registered voters fully qualified by law, said candidate shall be ineligible and the election of such candidate shall be null and void.
Section 23 of the act of August 12’, 1914- (Acts 1914, p. 1.170), provides that all persons who have been nominated by a political primary shall, five days before the election, file with the clerk of council notice of their nomination by their respective parties; and that in case of an independent candidate, he must likewise, five days before the election, file with the cleric of council a declaration of his intention to run, which must be accompanied by the petition described in section 6 of the act of August 12, 1914, above quoted.
Section 22 of the act of August 12, 1914 (Acts 1914, p. 1169), is as follows: “ In all elections for mayor and aldermen and recorder in the City of Savannah there shall be provided for use in said election official ballots containing in separate columns the *205names of the candidates for mayor and aldermen and recorder; there shall be as many columns as there shall be respective tickets or independent candidates, and the voter, shall scratch thereon the names of all candidates against whom he proposes to vote. The ballots shall be printed upon thick blue paper, and all ballots shall be of- uniform size and color. The ballots shall be prepared by the clerk of council at the expense of the city, and shall contain at least two inches margin on every side of the printed matter. On the morning of the election the clerk of council shall deliver to the representatives of each of the tickets not less than 15,000 of said. ballots. The representatives of each of said tickets may, on -the day before the election, procure from the clerk not more than 15,000 of said ballots, but said ballots shall be delivered at the expense of the party requesting the same, and it shall be the duty of the clerk to deliver said ballots to said applicants not later than twelve o’clock on the day preceeding the election. No vote cast on any other ballot shall be received by the managers of the election; if received by error or otherwise, it shall not be counted. It shall be unlawful for any manager of the election or any clerk to examine any 'ballot offered by any voter except for the purpose of counting the' ballot after the polls have closed, and any manager or clerk violating this provision shall be held guilty of a.misdemeanor under, the laws of the State of Georgia, and shall be punished as provided in section 1065 of the Penal 'Code of the State of Georgia.” This statute provides for an official ballot, and that it shall be prepared by the clerk of council; and it expressly commands that “no vote cast upon any other ballot shall be received by the managers of the election;' and if received by error or otherwise, it shall not be counted.” It will thus be seen that the statutes provide an official ballot, and the names to be placed thereon, and designates the clerk of council as the official to execute the terms of the statute prohibiting the use of any ballot other than that prepared by the clerk of council, which is denominated an official ballot.
Municipal corporations are creatures of statute. By the General Assembly they may be created or destroyed. Churchill v. Walker, 68 Ga. 681; Mayor &c. of Americus v. Perry, 114 Ga. 871 (40 S. E. 1004, 57 L. R. A. 230). The General Assembly, under this plenary power, has imposed upon the clerk of council *206of the City of Savannah the duty of preparing a ballot in accordance with the terms of the statute. This is an official duty. This is not a personal duty. It is a duty imposed by statute. If he omits, neglects or disregards the duty, it may be compelled by mandamus. Civil Code, §§ 5440-5441; 20 Cyc. 146, § 171. The position of the majority of the court, which in its last analysis is that in the event of a failure to perform this official duty an individual may perform it, is contrary to the underlying principles of law. That an official duty can neither be delegated to or usurped by an individual is elementary. The thought that private persons may perform an official duty imposed upon the clerk of council is denounced by the statute, which declares that “ho vote cast upon any other ballot [a ballot prepared by the clerk of council] shall be received by the managers of the election; if received by error or otherwise,^ shall not be counted.” From this it follows that it was the mandatory duty of the managers of the election in this case to follow the statute, and to count only those votes cast upon the official ballots.
It is contended that the statutes are unconstitutional, in that they deprive the elector of the right to cast his ballot for whom he pleases. I do not consider this question involved in this case, as it is the unvarying rule of this court not to consider the question of the constitutionality of any statute unless such issue is raised by the pleadings in the court below. Griggs v. State, 130 Ga. 16 (60 S. E. 103); Anderson v. State, 2 Ga. App. 1 (58 S. E. 401); Lee v. Central of Ga. Ry. Co., 147 Ga. 430 (94 S. E. 558, 13 A. L. R. 156). The pleadings in this case raised no issues as to the constitutionality of these statutes. If the question were properly under consideration, I would say that it is controlled by the case of Crovatt v. Mason, 101 Ga. 246 (28 S. E. 891). In that case although Mason received a large majority of the votes, his election was declared invalid because of a statute which provided that no councilman or alderman should be competent to hold any other municipal office during the time for which they were chosen. This statute was held to be constitutional. If it is competent for the legislature to deprive the voters of Brunswick of the right to vote for certain classes for mayor and aldermen, why is it not competent for the legislature to prescribe the qualifications of the candidates for mayor and aldermen of the City of Savannah ? The *207ease of Crovatt v. Mason, supra, has never been questioned, and is in accord with the best considered decisions of other states. Hanna v. Young, 57 Am. St. R. 396 (84 Md. 179, 35 Atl. 674, 34 L. R. A. 55); State v. Hanson, 80 Neb. 738 (117 N. W. 412); Scown v. Czarnecki, 264 Ill. 305 (106 N. E. 276, L. R. A. 1915B, 247, Ann. Cas. 1915A, 772) ; Spitzer v. Fulton, 92 Am. St. R. 736 (172 N. Y. 285, 64 N. E. 957).
Eor the foregoing reasons I think the judgment of the court below should be reversed.