{ "id": 2774979, "name": "Ciro Gulino, Appellee, vs. Joseph F. Cerny, Appellant", "name_abbreviation": "Gulino v. Cerny", "decision_date": "1958-03-20", "docket_number": "No. 34585", "first_page": "244", "last_page": "249", "citations": [ { "type": "official", "cite": "13 Ill. 2d 244" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "192 Ill. 58", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5578919 ], "pin_cites": [ { "page": "67" } ], "opinion_index": 0, "case_paths": [ "/ill/192/0058-01" ] }, { "cite": "328 Ill. 101", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5196401 ], "opinion_index": 0, "case_paths": [ "/ill/328/0101-01" ] }, { "cite": "387 Ill. 321", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2496343 ], "opinion_index": 0, "case_paths": [ "/ill/387/0321-01" ] }, { "cite": "135 Ill. 591", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2985171 ], "opinion_index": 0, "case_paths": [ "/ill/135/0591-01" ] }, { "cite": "158 Ill. 609", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 6046517 ], "opinion_index": 0, "case_paths": [ "/ill/158/0609-01" ] }, { "cite": "197 Ill. 432", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 844082 ], "opinion_index": 0, "case_paths": [ "/ill/197/0432-01" ] }, { "cite": "229 Ill. 198", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5630251 ], "opinion_index": 0, "case_paths": [ "/ill/229/0198-01" ] }, { "cite": "235 Ill. 326", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 8500159 ], "opinion_index": 0, "case_paths": [ "/ill/235/0326-01" ] }, { "cite": "2 Ill.2d 421", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 12129254 ], "opinion_index": 0, "case_paths": [ "/ill-2d/2/0421-01" ] }, { "cite": "333 Ill. 375", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5216765 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/333/0375-01" ] }, { "cite": "161 Ill. 319", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3122847 ], "opinion_index": 0, "case_paths": [ "/ill/161/0319-01" ] }, { "cite": "125 Ill. 141", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2937910 ], "pin_cites": [ { "page": "192" } ], "opinion_index": 0, "case_paths": [ "/ill/125/0141-01" ] } ], "analysis": { "cardinality": 431, "char_count": 8282, "ocr_confidence": 0.775, "pagerank": { "raw": 1.7805930956056447e-07, "percentile": 0.7134330997675926 }, "sha256": "7131f2543e9de5a38ace5f962e4cee10a1f844311d41e0d59f2c926b0c53279f", "simhash": "1:45145c765c07574d", "word_count": 1436 }, "last_updated": "2023-07-14T21:36:19.215677+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Ciro Gulino, Appellee, vs. Joseph F. Cerny, Appellant." ], "opinions": [ { "text": "Mr. Justice Schaefer\ndelivered the opinion of the court :\nOn April 16, 1957, an election was held for the office of president of the village of Stone Park, in Cook County. The result of the canvass was that Joseph F. Cerny, the nominee of the Progressive party, received 278 votes and Ciro Gulino, a write-in candidate, 244. Gulino filed a petition in the superior court of Cook County to contest the election. Cerny answered, the ballots were recounted, the court found that Gulino received 293 and Cerny 278 votes, and Gulino was declared elected. Cerny appeals. Ill. Rev. Stat. 1957, chap. 46, par. 23 \u2014 30.\nThe official ballot contained the name of Joseph F. Cerny as a candidate for president in the column on the left half of the ballot that was captioned \u201cProgressive Party.\u201d The names of the candidates of that party for village clerk and village trustees appeared in the same column below Cerny\u2019s name. Gulino\u2019s name did not appear on the ballot. On the right half of the ballot, opposite Cerny\u2019s name, there was a printed line. There were other printed lines on the right half of the ballot, opposite the names of the candidates of the Progressive party for other village offices.\nFor two or three weeks preceding the election on April 16, 1957, a vigorous campaign was conducted for Gulino as a write-in candidate. His pictures, with a statement of his candidacy for president of the village, were posted in prominent places in Stone Park, and considerable publicity attended the campaign.\nA total of 616 ballots were cast. On the recount, Cerny was credited with 276 and Gulino with 244 votes to which no objection was made. The controversy centered around 85 ballots. Of these, 49 were counted for Gulino, 2 for Cerny and 34 marked for Gulino were not counted for either candidate. The parties have failed to account for 11 ballots.\nCerny concedes that 11 of the 49 ballots were correctly credited to Gulino. On 26 of the 38 remaining ballots the name \u201cCiro Gulino\u201d or \u201cGulino,\u201d with a square in front of the name and an \u201cX\u201d in the square, was written on or above the printed line opposite the name of Cerny. These ballots were counted for Gulino. Three other ballots containing an \u201cX\u201d in the Progressive party circle, and one with an \u201cX\u201d in a written-in New Stone Park Party circle were also counted for Gulino. On each of them the name \u201cCiro Gulino\u201d or \u201cGulino,\u201d was written in on the line opposite Cerny\u2019s name and with a square enclosing an \u201cX\u201d before Gulino\u2019s name. On these 30 ballots, the office, however, was not designated. On the remaining 8 ballots counted for Gulino the name \u201cCiro Gulino\u201d or \u201cGulino\u201d was written in, with a circle instead of a square, containing an \u201cX,\u201d to the left of the name. Four of these 8 ballots also contained the written-in designation \u201cFor President\u201d and two were marked for all the candidates on the Progressive party except Cerny.\nSection 11 of article 17 of the Election Code (Ill. Rev. Stat. 1957, chap. 46, par. 17 \u2014 11,) provides that a voter shall prepare his ballot by making in the appropriate margin or place a cross (X) opposite the name of the candidate of his choice for each office to be filled, \u201cor by writing in the name of the candidate of his choice in a blank space on said ticket, making a cross (X) opposite thereto.\u201d Where the name of a candidate is written in on the ballot, the title of the office must be clearly designated, if there is more than one office on the ballot. (Kreitz v. Behrensmeyer, 125 Ill. 141, 192; Page v. Kuykendall, 161 Ill. 319.) Cerny therefore contends that unless the name of the candidate is \u201cwritten in,\u201d an \u201cX\u201d placed in a square in front of his name, and the office intended to be filled clearly indicated, a ballot cannot be counted.\nOur examination of the challenged ballots shows that the voters clearly intended to vote for Gulino for president of the village of Stone Park. They voted on the printed line to the right of, and directly opposite and across from, the name of the candidate of the Progressive party for president. There were but two candidates for president, Cerny and Gulino. As the result of an intensive campaign, the voters were aware that Gulino was the write-in candidate for president. They knew that Cerny and Gulino were opponents, and cast their votes for them and for no other candidate for president.\nThe circumstances attending an election may be considered in ascertaining the voter\u2019s intention, or to explain imperfections in the ballots. (Cray v. Davenport, 333 Ill. 375.) The ballots show the choice of the voters for the candidate for whom they were voting, and also the office. Where the intention of the voter can be clearly ascertained from his ballot, that intention will be effectuated although the ballot is not strictly in conformity with law. (Griffin v. Rausa, 2 Ill.2d 421; Kerr v. Flewelling, 235 Ill. 326; Winn v. Blackman, 229 Ill. 198; Pierce v. People ex rel. Field, 197 Ill. 432; Parker v. Orr, 158 Ill. 609; Behrensmeyer v. Kreitz, 135 Ill. 591.) As observed in Parker v. Orr, at page 616, quoting Wigmore on Australian Ballot System, 2d ed., p. 195: \u201cWherever our statutes do not expressly declare that particular informalities do not avoid the ballot, it would seem best to consider their requirements as directory, only.\u201d\nThe ballots which were voted by writing in the name \u201cGulino\u201d without any Christian name or initials, and otherwise properly marked, were correctly counted for Gulino, who was the only candidate of that name known to be running for the office of president of the village. (Cray v. Davenport, 333 Ill. 375.) The Election Code does not expressly declare invalid any of the ballots that were counted for Gulino upon the recount. We agree with the trial judge that the voters\u2019 intentions were clear, and that the secrecy of the ballot was not violated even though some of the ballots were not cast in strict accordance with the law.\nOn eight ballots the name \u201cCiro Gulino\u201d was written in and an \u201cX\u201d was placed within a circle before or above his name, instead of in a square. The persons who wrote Gulino\u2019s name on the printed line opposite Cerny\u2019s name should not be disfranchised merely because they encircled their \u201cX\u201d instead of placing it in a square. The manifest intention of the voters who placed a cross in the circle before or above Gulino\u2019s name was to vote for him as a \u201cWrite-in Party\u201d candidate. Section 17 \u2014 11 of the Election Code, in authorizing write-in votes, provides for writing in the name of the candidate of the voter\u2019s choice \u201cin a blank space on said ticket, making a cross (X) opposite thereto,\u201d but does not prescribe that the cross be placed in a square. (Cf. Tuthill v. Rendelman, 387 Ill. 321.) If an honest intention of the voter can be fairly ascertained from his ballot, the voter will not be disfranchised through inadvertence, mistake or ignorance, provided no mandatory provision of the election Code is violated. Patterson v. Johnston, 328 Ill. 101.\nCerny\u2019s contention that 21 of the 49 ballots credited to Gulino bore distinguishing marks which invalidated them and, therefore, should not have been counted, was waived in the trial court and is not open to consideration in this court. (Perkins v. Bertrand, 192 Ill. 58, 67.) At the conclusion of the recount, the attorney for Cerny said: \u201cThere was only one ballot, I think, in the entire eighty something ballots before Your Honor in which we made any objection as to identification marks. Other than that, that point is not involved in any of these exhibits, so the case cited by counsel with reference to ballots marked with long arrows down the side or otherwise in question in that particular case does not concern us. Further than that, there were no ballots in there where we have objected to the spelling of Mr. Gulino\u2019s name or to the fact that the first name was eliminated.\u201d Whether the one ballot to which objection may have been made upon the ground of identification marks was properly counted for Gulino is not material.\nThe judgment of the superior court of Cook County is affirmed. r , , ,\n, Judgment affirmed.", "type": "majority", "author": "Mr. Justice Schaefer" } ], "attorneys": [ "Charles D. Snewind, of Chicago, for appellant.", "Ignatz Spitz, of Chicago, for appellee." ], "corrections": "", "head_matter": "(No. 34585.\nCiro Gulino, Appellee, vs. Joseph F. Cerny, Appellant.\nOpinion filed March 20, 1958.\nCharles D. Snewind, of Chicago, for appellant.\nIgnatz Spitz, of Chicago, for appellee." }, "file_name": "0244-01", "first_page_order": 244, "last_page_order": 249 }