The litigation, necessitating a determination of controversial Act 242 of 1951, was begun when Ellis and Davidson filed an original proceeding in this court November 17, 1951, challenging sufficiency of the petition to refer. See Ellis v. Hall, Secretary of State, 219 Ark. 869, 245 S. W. 2d 223.
This is the first action reaching this court under Amendment No. 7 to the Constitution, involving a statewide petition, where nature of the issues and character of the proof reasonably necessary to an understanding of factual transactions clearly indicated from the inception that large expenditures for witness fees, court costs of a miscellaneous nature, compensation of a commis*26sioner should one be appointed, and items of like nature, would inevitably attach.
Unfortunately the probability of comprehensive litigation such as we have been dealing with did not occur to the General Assembly; or, if so, it did not make provision for the payment of costs. The inference deducible from Amendment No. 7 is that when counterpart petitions are filed with the Secretary of State containing in the aggregate names sufficient to set the State’s machinery in motion, the question at issue is a public one and may not be controlled by the persons primarily interested in initiating or referring a measure. It therefore seems logical that the cost of litigation is removed from the realm of private interest and becomes an obligation of the State; and, as we have seen, the policy-making department has not provided an appropriation to meet such necessary expenses.
Faced with this dilemma the court had no recourse but to require the plaintiffs to execute a cost bond. Its sufficiency is conceded, but the plaintiffs have at all times contended that expenses necessary to the defendant’s proof should not be taxed against the bond. The argument was not without persuasive phases and the court, when motions were made from time to time, was reluctant to enter a general order broad enough to permit the Attorney General as the State’s counsel to indiscriminately incur obligations that the plaintiffs’ bondsmen would have to pay, hence the trial did not proceed as expeditiously as would have been the case if unrestricted recourse to the bond had been authorized:
In an initial effort to minimize expenses, at least two members of the court voted that the judges sit in divisions or individually in relays as time permitted. The majority believed, and perhaps correctly, that routine appellate work would suffer if this method should be adopted. It was also pointed out that a constant shift in the presiding authority would interrupt continuity, since much that was heard would depend upon memory or written memoranda. The final consensus was that a commis*27sioner should be designated, invested with authority to conduct hearings, compel the attendance of witnesses, pass upon legal issues, and then report to the court. For this work Mr. Wayne Upton of the Little Rock bar was selected and it is a matter of gratification to the court that not a single complaint was made regarding his methods, nor have there been any informal suggestions that his official conduct has been other than that meeting the highest judicial test.
During the protracted period following announcement of procedural policy, numerous motions were filed directly with the court, and at times the Commissioner asked for directions. The subject-matter was sometimes thought by the judges to be of a nature not germane to the principal issue; or, if germane, of a kind that would be resolved without prejudice to either side if the litigants were permitted to proceed in the absence of specific detemination at that time. This course by the court may have prolonged the trial.
Before its summer adjournment July 7th an order was entered whereby the court could reconvene upon call of the Chief Justice during the recess period, but due to a misunderstanding (explained from the bench last Tuesday afternoon when the plaintiffs asked for judgment on the Commissioner’s findings) this meeting was not held.
Some of the responsibility for not having the interim session rests upon the writer of this opinion; none is attributable to the other judges. It is obvious, however, that the litigation could not have been completed in time for judgment before certification of the ballot if the court had met.
The Commissioner’s report, being tentative as to results and containing prima facie findings only, meant nothing more than that the evidence offered by plaintiffs showed the petition to be approximately 1,400 short of the required number of signers, provided the defendants could not reclaim an equal number from the more than 8,000 signatures prima facie invalid. When the plaintiffs rested June 19th the announcement was coupled with a *28statement that the right was reserved, “if necessary,” to take testimony out in the state, for [said the attorney] “We have about 3,800 names in addition to those that have been testified to here.”
The Commissioner’s report was filed September 29th.
Some of the members of the court believe that Beene v. Hutto, 192 Ark. 848, 96 S. W. 2d 485, is authority to enter an order at any time before the election finding that a measure to be voted upon is not properly on the ballot, hence a certificate by election commissioners that the measure had been adopted would be nugatory. In view of our conclusion that the issues cannot be determined before the election November 4th, it is not necessary to construe the Amendment or Judge Mehaffy’s opinion in the Beene case.
The result is that we are unwilling for a public matter to be withheld from the electorate on a prima facie showing alone, and since the remaining time is insufficient for completion of the proof the injunction is denied and the cause dismissed.
Mr. Upton is authorized to collect under the bond such sums as may be necessary to pay costs. The Commissioner’s fee, being a similar charge, will be fixed by the court if the parties are unable to reach an agreement.