Weatherby, 180 Ill. 418, 54 N. E. 237. And the probate of a will granted in another state is not admissible in evidence in West Virginia, without re-probate there, for the purpose of showing that the power of appointment authorized to be exercised by the will has been so exercised: Thrasher v. Ballard, 33 W. Va. 285, 25 Am. St. Rep. 894, 10 S. E. 411.

e. Proof of Foreign Probate.-Statutes providing for the proof and registration of foreign wills which already have been probated at the domicile of the testator generally require the production of an authenticated copy of the will and the probate thereof: Cal. Code Civ. Proc., sec. 1323; Wickersham v. Johnston, 104 Cal. 407, 43 Am. St. Rep. 118, 38 Pac. 89; In re Capper's Will, 85 Iowa, 82, 52 N. W. 6; Shannon v. Shannon, 111 Mass. 331; Pope v. Cutler, 34 Mich. 150; Lindley v. O'Reilly, 50 N. J. L. 636, 7 Am. St. Rep. 802, 15 Atl. 379, 1 L. R. A. 79. It has been affirmed, however, that the proof and allowance of a will in another state where the testator had his domicile at the time of his death, if duly authenticated, will be presumed to be in accordance with the laws of that state; and that it is not necessary to specially allege the foreign statute, or to expressly prove that the proof and allowance of the will was in accordance with such statute: Martin v. Martin, 70 Neb. 207, 97 N. W. 289 (citing Wilt v. Cutler, 38 Mich. 189); Houze v. Houze, 16 Tex. 598.

In some states, when a foreign will and the probate thereof are sought to be proved and recorded in a jurisdiction where the testator left property, the statutes do not require the execution of the will to be according to the law of that state, but only according to the law of the state where the original probate has been had: Kennard v. Kennard, 63 N. H. 303. See, too, Gardner v. Ladue, 47 Ill. 211, 95 Am. Dec. 487. In other states, however, where real estate is involved, the proof of the will and of its probate must show that the will was executed in accordance with the law of the state where its registration is sought: In re Nash's Will, 37 Misc. Rep. 706, 76 N. Y. Supp. 453; In re Hagar's Will, 48 Misc. Rep. 43, 96 N. Y. Supp. 96; Raleigh etc. Ry. Co. v. Glendon etc. Mfg. Co., 113 N. C. 241, 18 S. E. 208; Clayson v. Clayson, 24 Or. 542, 34 Pac. 358; or it must be shown, not only that the will has been admitted to probate in the foreign court, but that the evidence heard there was sufficient to authorize its probate in the first instance in the probate courts of the state where it is offered for registration: Williams v. Jones, 77 Ky. (14 Bush) 418; Dupoyster v. Gagoni, 84 Ky. 403, 1 S. W. 652.

f. Conclusiveness and Effect of Probate.

1. In General.-A decree of a probate court of one state admitting a will to probate within its jurisdiction is generally regarded as conclusive evidence of the due execution of the will, the testamentary capacity of the testator, and other matters affecting the validity of the will, upon an application to prove and record the will in another

state: Harris v. Harris, 61 Ind. 117; Dalrymple v. Gamble, 68 Md. 523, 13 Atl. 156; Crippen v. Dexter, 79 Mass. (13 Gray)' 330; Babcock v. Collins, 60 Minn. 73, 51 Am. St. Rep. 503, 61 N. W. 1020; Crusoe v. Butler, 36 Miss. 150; Poole v. Jackson, 66 Tex. 380, 1 S. W. 75. But see Bowen v. Johnson, 5 R. I. 112, 73 Am. Dec. 49. The only question open to consideration in such a case is, as a rule, the jurisdiction of the court granting the probate and rendering the decree: Ives v. Salisbury's Heirs, 56 Vt. 565. See, in this connection, the principal case. Certainly the validity of the will cannot, after thus having been probated in a foreign court having jurisdiction, be attacked collaterally: Wells v. Neff, 14 Or. 66, 12 Pac. 84, 88.

Under the Kentucky statute providing that no will shall be received in evidence unless it has been recorded in the county court, and that its probate in that court shall be conclusive, an order of the county court reciting that a foreign will and certificate of probate have been presented and evidence heard, and adjudging that such copy be admitted to record as a last will, is condusive as to the competency and validity as evidence of such foreign will: Whalen v. Nisbet, 95 Ky. 464, 26 S. W. 188.

Where a will, executed in Kentucky according to the law of Missouri, is recorded in the former state, and an authenticated copy of such record is recorded in the proper county in Missouri, a copy of this last record furnishes conclusive proof of the will: Applegate v. Smith, 31 Mo. 166.

The action of a court in another state annulling a will probated in Texas cannot affect the status of property of the testator situated in Texas: Acklin v. Paschal, 48 Tex. 147. And a will devising lands in Virginia may be proved in that state, although it has been declared void in some other state: Rice v. Jones, 4 Call (Va.), 89.

2. Where Real Estate is Involved. The probate of a will in one state, although conclusive as to the title to personalty, if the probate is made at the domicile of the testator, is of no force in establishing the sufficiency of a devise of land in another state; it can obtain such force only by virtue of some law of the state in which the realty is situated. The clause of the federal constitution which requires full faith and credit to be given in each state to the records and judicial proceedings of every other state, applies to the records and proceedings of courts only so far as they have jurisdiction, and the courts of one state are without jurisdiction over title to real estate in another state: Otto v. Doty, 61 Iowa, 23, 15 N. W. 578; Keith v. Johnson, 97 Mo. 223, 10 S. W. 597; Nelson v. Potter, 50 N. J. L. 324, 15 Atl. 375; Martin v. Stovall, 103 Tenn. 1, 52, S. W. 296, 48 L. R. A. 130.

Where a will has been duly probated in one state, its admission to probate and record in another state where the testator left real property operates to convey to and vest title in the devisees the same as would a domestic will duly probated: Parker v. Parker, 65

Mass. (11 Cush.) 519; Clow v. Plummer, 85 Mich. 550. 48 N. W. 795; Carpenter v. Denoon, 29 Ohio St. 379; Markwell v. Thore, 28 Wis. 548; Hayes v. Lienlokken, 48 Wis. 509, 4 N. W. 584. And the title of the devisees takes effect by relation as from the date of the testator's death: Wright v. Williamson, 67 Me. 524; Hall's Lessee v. Ashby, 9 Ohio, 96, 34 Am. Dec. 424; Bleidorn v. Pilot Mountain Coal etc. Co., 89 Tenn. 166, 204, 15 S. W. 737.

A conveyance by a devisee under a foreign will, made before the will is filed and recorded in the state where the land is located, is nevertheless good, for his title has relation to the decease of the testator: Trustees of Putnam Free School v. Fisher, 30 Me. 523. And if executors make a conveyance of land under a power contained in a will, after the will has been probated at the domicile of the testator, but before it has been proved and recorded in the state where the land lies, the subsequent proof and registration of the will in the latter state will relate back and validate the sale: Babcock v. Collins, 60 Minn. 73, 51 Am. St. Rep. 503, 61 N. W. 1020.

GREENBERG v. WESTERN TURF ASSOCIATION. [148 Cal. 126, 82 Pac. 884.]

PLACE OF AMUSEMENT-Rights of Ticket-holder-Constitutional Law.-A statute making it unlawful to refuse admission to a proper person holding a ticket to any place of public amusement, and entitling him, if refused admission, to recover his actual damages and one hundred dollars in addition thereto, is constitutional. (pp. 217, 218.)

This action was brought by a person ejected from a racecourse, and was based on a statute declaring it unlawful to refuse admission to proper persons holding tickets to places of public amusement, and entitling them, if refused admission, to recover their actual damages and one hundred dollars in addition thereto.

W. S. Goodfellow, Goodfellow & Eels, Charles F. Gardner and D. E. Alexander, for the appellant.

Sullivan & Sullivan and E. C. Harrison, for the respondent. 127 HENSHAW, J. This case is between the same parties and similar to that of Greenberg v. Western Turf Assn., 140 Cal. 357, 73 Pac. 1050. Plaintiff recovered judgment before a jury, and from that judgment and from an order refusing its motion for a new trial defendant appeals.

Defendant first complains of the court's refusal to instruct the jury to render a verdict in its favor; the contention herein being that upon the undisputed facts Green and Newman, who ejected the plaintiff, were not employés of the defendant, but of Mr. Morse, proprietor of the Morse Detective Agency, and that as Morse was an independent contractor, the doctrine of respondeat superior should have been applied to him, and not to the defendant. The evidence, however, upon the question was conflicting, and the court properly submitted the matter for determination to the jury.

It is next contended that the act under which plaintiff sought his recovery is unconstitutional, and in this regard it is insisted that the construction put upon the act in Greenberg v. Western Turf Assn., 140 Cal. 357, 73 Pac. 1050, is erroneous. Herein appellant contends that the statute is in contravention of the fourteenth amendment to the constitution of the United States and section 1 of the declaration of rights of the state constitution, and this court is asked to reconsider the construction which formerly was put upon the act. The argument of appellant in this respect seems to be that as at common law the purchaser of a ticket to a place of amusement held only a revocable license, and the proprietor of such a place of amusement could either refuse the holder of the ticket admission or eject him after admission, not being responsible in tort, but merely in contract for the price of the ticket and the necessary expenses incurred by the purchaser, no subsequent legislation by the state can modify this common-law rule, except in one particular, and that is, that the exclusion cannot be by way of race discrimination, and because of "race, color, or previous condition of servitude,' and that, as the act in question is not designed 128 to meet this condition or to effectuate this end, it is an unwarranted invasion of the rights which the defendant enjoyed before the passage of the act under the rule as it existed at common law. If the right of state legislatures to pass an act such as this rested upon the proposition enunciated, the acts themselves would be of no value, for, as pointed out in the note to McCrea v. Marsh, 12 Gray, 211, 71 Am. Dec. 745, "The states might pass such laws, but, if a ticket to a theater is but a revocable license, they would be of little effect, as, if the theater proprietor desired to exclude colored persons, he might do so merely by revoking the license, and it would be impossible to determine whether it was revoked by reason of 'race,

color, or previous condition of servitude.'' The truth of the matter is that the right of the state rests upon no such flimsy foundation. It is based upon its fundamental right, when not acting in contravention to its constitution or to the constitution of the United States, to modify the common law. As is said in Charge to Grand Jury, 1 Hughes, 541, Fed. Cas. No. 18,258. "A state has the constitutional and legislative power to change or modify the common law, and by statute establish and regulate the rights of its citizens to the enjoyment and benefit of inns, public conveyances, etc." As pointed out in Dillon on Municipal Corporations (fourth edition, volume 1, section 357), "Charters not infrequently confer upon the corporation the power to 'license and regulate' or to license, regulate, and tax' certain vocations and employments, and to 'tax and restrain' or 'prohibit' exhibitions, shows, places of amusement, and the like, and, unless there is some specified limitation on the authority of the legislature in this respect, such provisions are constitutional." The state, in the exercise of its police power, has the unquestioned right to regulate these places of public amusement, and it is in the exercise of this power, and not at all as having to do with civil rights, that the act in question was upheld in 140 Cal. (and 73 Pac.), and its constitutionality is here again affirmed.

McFarland, J., Lorigan, J., Shaw, J., Angelotti, J., and Van Dyke, J., concurred.

The judgment of the supreme court of California was affirmed, and the constitutionality of the statute involved sustained on writ of error: See Western Turf Assn. v. Greenberg, 27 U. S. S. C. Rep. 384.

The Law Applicable to Places of Public Amusement is considered in the recent note to Horney v. Nixon, 110 Am. St. Rep. 525-537, and in the subsequent case of Collister v. Hayman, 183 N. Y. 250, 111 Am. St. Rep. 740.