in time of peace, in order the better to cope with some local
disturbance, is to be regarded as an expression of the will of
the civil authority, by virtue of which the civil courts lose the
power of discharging on _habeas corpus_ one restrained of
his liberty by military command. That it is such an expression
was held in Colorado in 1904, but by a court composed of only
three judges, of whom one, in a dissenting opinion, observed that
the decision of his associates "is so repugnant to my notions of
civil liberty, so antagonistic to my ideas of a republican form
of government, and so shocking to my sense of propriety and
justice that I cannot properly characterize it." A similar
question arose, but was not judicially determined, in Arkansas in
1874. There was a contest over the election of Governor. The
Constitution provided that such contests should be decided by the
joint vote of both houses of the legislature. Baxter, the
candidate who was elected on the face of the returns, was
declared elected by the President of the Senate and took the oath
of office. Brooks, the other candidate, presented a petition for
a contest to the lower house, which refused to grant it. He then
applied to the Supreme Court on _quo warranto_ proceedings,
which threw out the case for want of jurisdiction.[Footnote:
State _v._ Baxter, 28 Arkansas Reports, 129.] A similar
suit was then brought in a _nisi prius_ court, on which
judgment was rendered in his favor,[Footnote: This judgment was
reversed on appeal. Baxter _v._ Brooks, 29 _id_.,
173.] and he was put in possession of the executive chambers by
an armed force which he assembled. Baxter then declared martial
law in the county in which the capital was situated, and arrested
two of the judges of the Supreme Court on their way to attend a
special session called to take action in _mandamus_