like this, where there is much reason to fear that the verdict was not the result of a dispassionate consideration of all the evidence in the case, it becomes material and substantial error." In this case there is reason to fear that the verdict was not the result of a dispassionate consideration of the evidence, and as was said in the McKevitt case, supra, the prosecuting attorney should not be permitted to sustain this verdict if his conduct has contributed to the conviction. I have not attempted to set out all of the remarks of the prosecuting attorney that were objectionable, but for the reasons given above this judgment should, in my opinion, be reversed. THE PEOPLE ex rel. John A. Black et al. Appellants, vs. T. D. SULLIVAN et al. Appellees. Opinion filed October 28, 1910-Rehearing denied Dec. 7, 1910. 1. ELECTIONS-ballot for township high school election should not be ambiguous. While the law does not prescribe any form for the ballot in an election upon the question of establishing a township high school, yet such ballot, whether prepared and furnished by the election officers or the voters themselves, must be in such form as to show with reasonable certainty how the voter intended his ballot to be counted. 2. SAME when ballot is ambiguous. A ballot reading "For or against establishing a Township High School," etc., followed by the words "Yes" and "No" in small squares, with a blank square for the voter's cross opposite each of such words, is ambiguous and uncertain, and does not, of itself, indicate the voter's intention. 3. SAME when affidavits of voters are admissible. On application for leave to file an information in the nature of quo warranto, where it is claimed that the township high school election complained of was void because the ballot was so printed as to be ambiguous and uncertain, the court may consider the affidavits of the voters themselves as to how they understood and marked the ballot and how they intended to vote and the affidavits of the judges of the election as to how the marked ballots were understood and counted by them. 4. QUO WARRANTO-when leave to file information is properly denied. Leave to file an information in the nature of quo warranto attacking the legality of an election declared to be in favor of establishing a township high school is properly denied, even though the ballot is ambiguous in its wording, where more than a majority of the ballots cast are shown by the affidavits of the voters and the election judges to have been cast in favor of the proposition, counting as against the proposition all persons shown to have been misled by the uncertain wording of the ballot. CARTWRIGHT, J., dissenting; CARTER, J., specially concurring. APPEAL from the Circuit Court of McDonough county; the Hon. R. J. GRIER, Judge, presiding. This proceeding was instituted by the State's attorney of McDonough county in the name of the People of the State of Illinois, on the relation of John A. Black, George N. Runkle and James A. Butcher, by petition to the circuit court for leave to file an information in the nature of quo warranto against T. D. Sullivan, O. V. Beaver, W. H. Willey, W. R. Clawson and J. F. Lawyer. The petition alleged that the relators were residents, legal voters and taxpayers in township 4, north, range 2, west of the fourth principal meridian, McDonough county, Illinois; that said Sullivan, Beaver, Willey, Clawson and Lawyer were then, and for more than ninety days last past had been, without any warrant, title or right whatever, holding and executing the office of members of the board of education of the township high school in said town and were discharging the duties of directors of schools in and for said town, contrary to the statutes in such cases made and provided. The petition alleged that on the 20th day of March, 1909, a petition for the establishment of a high school in said township was presented to the township treasurer of said town, praying for the submission to the legal voters of said township of the question of establishing a township high school therein and that an election be called in accordance with law for that purpose; that an election pursuant to the prayer of the petition was ordered to be held on the 6th day of April, 1909, and notice given that said election would be held for the purpose of voting for or against the establishment of a high school in said township. The petition further alleges that at said election a ballot was furnished for the voters which was in the following form: For or Against establishing a Township High Yes Νο J. W. FLACK, Township Clerk. and that no other form of ballot was furnished to or used by the voters and voted at said election. The petition alleges that said ballot was uncertain, ambiguous and misleading, and tended to, and did, confuse and deceive the voters; that many voters desiring to vote against the establishment of the high school placed a cross or other mark in the space following the word "yes" on said ballot, and voted the ballot, thus marked, at said election; that many voters who attended the said election and desired to vote against the establishment of a township high school were unable to determine from the ballot in what manner it should be marked to express a vote against the proposition and for that reason did not vote at said election. The petition alleges that on the day said election was held there were in the township more than 440 legal voters; that 334 ballots were cast, and that all of them were void for the reason that they were uncertain, ambiguous, misleading and confused and deceived the voters who voted them; that the returns of said election show that 252 of the ballots cast were counted in favor of establishing a town ship high school and nat 82 of them were counted against the proposition. The petition alleges that by reason of the ballots being uncertain, ambiguous and misleading they could not be legally counted for or against the proposition of establishing a township high school. The petition further alleges that afterwards a pretended election was held for the purpose of electing a township high school board of education, consisting of five members, at which said Sullivan, Beaver, Clawson, Willey and Lawyer claimed to have been elected, and said pretended board is attempting to issue bonds against said pretended high school district in the sum of $15,000 and have attempted to levy a tax for educational purposes in the sum of $2000. The petition alleges that by reason of the fact that the election to vote on the proposition of establishing a township high school was illegal and void no such school or school district was established and the pretended election of members of the board of education for said pretended township high school district was illegal and void. Notice was served on respondents August 30, 1909, that application would be made to the court on the 20th day of September, 1909, which was the first day of the term of said court, for leave to file an information. On the 6th day of October, 1909, the court, of its own motion, entered a rule against respondents to show cause why leave should not be granted to file the information. In answer to the rule respondents filed the affidavits of 180 of the voters who had voted at the election for the establishment of a township high school, stating, in substance, that they voted "yes" by making a cross after the word "yes" as printed on the ballot, and that they understood by so voting that they were voting for the establishment of a township high school, and that if it was desired to vote against the establishment of said township high school the cross should have been made after the word "no" as printed on the ballot. They also filed the affidavits of two of the judges of said election, stating that ballots marked with a cross opposite the word "yes" were counted for the establishment of the township high school and those voted by making a cross opposite the word "no" were counted against the proposition. A motion by petitioners to strike all these affidavits from the files was overruled except as to the affidavit of respondent O. V. Beaver and part of the affidavit of one of the judges of the election. The petition was supported by an affidavit of one legal voter of said township, who stated he desired to vote against the establishment of a township high school and marked his ballot by placing a cross after the word "yes," and also wrote opposite the word "yes" the word "against," for the purpose of making it clear how he desired to vote. The affidavits of three other legal voters stated they desired to vote against the establishment of a township high school but were unable to determine from the ballot how to mark the same to express their intention and for that reason did not vote at all. Upon this showing of the respective parties the court refused leave to file the information and dismissed the petition, and petitioners have prosecuted an appeal to this court. W. H. STEAD, Attorney General, and T. H. MILLER, State's Attorney, (ELTING & HAINLINE, and TUNNICLIFF & GUMBART, of counsel,) for appellants. FLACK & LAWYER, for appellees. Mr. JUSTICE FARMER delivered the opinion of the court: The decision of this case depends upon whether the election for the establishment of the township high school was a legal election. Appellants insist that the election was illegal on account of the form of the ballot used. Both parties agree that the election was not required to be held under the Australian Ballot law, and no official ballot was therefore required to be provided by the officers having charge of the calling and holding of an election. It is contended, however, by appellants that no other ballot than |