The first question which arises is, how far are we at liberty to look into the proceedings returned by the Recorder’s Court, to ascertain whether the Recorder erred in any respect within our supervisory control.
It is claimed on behalf of the People that, upon a certiorari at common law, the only thing to be determined is whether the court below had jurisdiction; and that if jurisdiction existed, the discretionary power of the court can not be inquired into. And it is further claimed that the jurisdiction depends upon the subject matter of the *117complaint. Applying this rule to the case before us, it is insisted that the Recorder’s Court has jurisdiction of all complaints for obstructing alleys, and that this jurisdiction being called into exercise by such a complaint, its proceedings thenceforth are not examinable unless an unauthorized judgment is given beyond the one allowed by law. As the same immunity from review applies to all special tribunals not acting according to the course of the common law, it becomes very important to ascertain how far this doctrine is correct; for if true it certainly gives them an extent of authority over persons and property not possessed by any of the higher courts.
There are certain classes of questions whi'ch, by the common understanding from time immemorial, belong to the course of judicial inquiry under the laws of the land. The common law, and the various charters and bills of rights, recognized and assured the right to such an inquiry. And the Constitution of this State, in apportioning the judicial power, as well as in affirming the immunity of life liberty and property, has always been understood to guarantee to each citizen the right to have his title to property and other legal privileges determined by the general tribunals of the State. These municipal courts, so far as they act under city by-laws, are not designed to decide between man and man, or to administer general laws. They are ordained to prevent disorder in matters of local convenience, and to regulate the use of public and quasi public easements so as to prevent confusion. If in exercising this power, they can incidentally decide upon the rights of private property so as to determine its enjoyment without review, there would seem to be a practical annihilation of the right to resort to the general tribunals and the common law. The consequences of such a doctrine, whether correct or incorrect, are serious enough to render it our duty to examine very carefully into its foundations.
The power of reviewing upon certiorari judicial pro*118■ceedings of inferior tribunals and bodies not according to the course of the common law, has long been exercised in England, as well as in this country. The power has been jealously maintained, and has been deemed necessary to prevent oppression. It must be apparent to any one that if the superior court could only examine into the right of the inferior one to enter upon an inquiry, without reference to the manner in which that inquiry is conducted, this remedy would be of small account.
In New York, a series of decisions have appeared from time to time, asserting that when certiorari is given by statute, it lies to correct any legal mistakes; blit where issued as at common law, it can only review the jurisdiction of the court below. It is unnecessary to refer particularly to these authorities, inasmuch as in Morewood v. Hollister, 2 Seld. 309, this distinction seems to be regarded as unfounded, and the office of the writ is considered as reaching all errors of law. We have examined with much care all the English authorities within reach, bearing upon this subject, and have found nothing whatever to give color to such a distinction. There are indeed cases where a certiorari lies to examine errors generally, and others where it lies only to inquire into the jurisdiction; but the distinction arises out of very different considerations. This will appear by reference to some of the cases in which questions of jurisdiction have been reviewed.
There are many statutes in England which, not only in large classes of summary convictions, but also in special proceedings for condemning lands, and for other purposes, take away, in express terms or by acknowledged implication, the right to a certiorari, which otherwise existed. In some cases an appeal lies to review the whole proceeding; in others, it is subject to no further examination on the merits. In all these cases it is held, that a statute taking away the right to a certiorari does not deprive the aggrieved party of the right to sue out such a writ where the pro*119eeeding has been without jurisdiction. And the want of jurisdiction, when arising from matters not appearing in any way on the proceedings, may even be shown aliimde by the affidavits: — Regina v. Manchester & Leeds Railway Co., 8 Ad. & El. 413; Regina v. Sheffield Railway Co., 11 Ad. & El. 194; Rex v. Justices of Somersetshire, 5 B. & C. 816; Rex v. Justices of Kent, 10 B. & C. 477; Rex v. Justices of Middlesex, 5 Ad. & El. 626; Ex parte Carruthers, 2 Man. & Ry. 397; Regina v. South Wales Railway Co., 13 Q. B. 988; Ex parte Hopwood, 15 Q. B. 121; Ex parte Hyde, 5 Eng. L. & Eq. 368; Regina v. Justices of St. Albans, 18 Eng. L. & Eq. 244; Regina v. Justices of Staffordshire, 30 Eng. L. & Eq. 402; In Re Edmondson, 24 Eng. L. & Eq. 169; Regina v. Leeds & Bradford Railway Co. 11 Eng. L. & Eq. 484.
If certiorari will lie for want of jurisdiction in cases where the common law remedy of certiorari, in its usual acceptation, is expressly or confessedly taken away, it follows as an unavoidable conclusion that the usual office of the common law writ is to inquire into something more than jurisdiction. This may be made more plain by examining what is required to be returned.
It was held in Rex v. Killett, 4 Burr. 2063, that it is necessary to set out the evidence upon a conviction, that the court may judge whether the justices have done right. And in Rex v. Read, 2 Doug. 486, it was held that a conviction is bad unless it does set forth the evidence. The same doctrine is laid down in Rex v. Clarke, 8 T. R. 220; Rex v. Smith, 8 T. R. 588; Regina v. Tuck, 10 Q. B. 540. And where the evidence set out is not sufficient to justify a conviction, or other judicial act copiplained of, it will be quashed on certiorari: — Rex v. Smith, 8 T. R. 588; Rex v. Dove, 3 B. & Ald. 596; Rex v. Taylor, 2 Chit. R. 578; Rex v. Hall, Cowp. 728; Rex v. Daman, 2 B. & Ald. 378; Rex v. Davis, 6 T. R. 177; Rex v. Inhabitants of Great Wishford, 4 Ad. & El. 216; Rex v. *120Inhabitants of Woolpit, 4 Ad. & El. 205; Regina v. Inhabitants of High Beckington, 3 Q. B. 790.
The office of a certiorari is not however to review questions of fact, hut questions of law. And in examining into the evidence the appellate court does so not to determine whether the probabilities preponderate one way or the other, but simply to determine whether the evidence is such that it will justify the finding as a legitimate inference from the facts proved, whether that inference would or would not have been drawn by the appellate tribunal. It is said in The King v. Daman, 2 B. & Ald. 378, that “ all the facts necessary to subject the party to the penalty imposed by the act of Parliament must appear upon the information, and be established by proof.” And in The King v. Davis, 6 T. R. 177, it is said “it is sufficient in convictions if there were such evidence before the magistrates as in an action wotcld be sufficient to be left to a jury" The same principles are recognized in the other cases above cited. Also in Rex v. Glossop, 4 B. & Ald. 616; Regina v. Bolton, 1 Q. B. 67.
Wbere facts exist which, if apparent, would have ousted the jurisdiction, they have been allowed to be set forth in the affidavits of the relator, and a response required. Instances of this occur where the magistrate acting was disqualified by interest or other similar cause: — Regina v. Bolton, 1 Q. B. 67; Regina v. Cheltenham Com'rs, 1 Q. B. 467; Regina v. Justices of Hertfordshire, 6 Q. B. 753. And in Regina v. Gillyard, 12 Q. B. 527, a conviction was quashed, although perfectly regular, because it was made to appear that it was obtained fraudulently.
The same principles which require a conviction to be quashed when upon the facts and the law applicable to them the case is insufficient to justify it, would seem to require that rulings of law upon the admission or exclusion of evidence should be reviewed. And such we find to have been the practice. In the ease of Regina v. Chel*121tenham Com’rs, 1 Q. B. 467, the rate complained of was quashed because certain interested magistrates voted upon the admission of evidence, the court holding this a decision which might have had an important influence upon' the result, and therefore suflicient to avoid the whole action, whether the interested magistrates took any further part or not. And. in this case the statute had expressly taken away the writ of certiorari; and it was issued and the case decided, on the ground that the question from its bearing became one of jurisdiction. An in Regina v. Justices of Hertfordshire, 6 Q. B. 754, the proceedings were quashed because an interested magistrate had sat during a portion of them, although he withdrew before they were completed. The questions of law arising either upon the admission of evidence, or the other rulings in the proceedings, must always have a bearing on the result, and the appellate court can not, generally, at least, assume that any of them have not contributed to it. In Regina v. Justices of Staffordshire, 30 Eng. L. & Eq. 402, where certiorari was expressly taken away by statute, a writ was allowed, and a conviction under a local by-law quashed because the justices had ruled that an approval of the by-law by the 'Secretary of State made it binding, and therefore refused to consider its validity. The court of Q. B. held the by-law invalid, and so quashed the conviction.
We are therefore of opinion, that the return to the certiorari is all properly before us, and that the law contemplates that it shall be full, both upon the evidence and upon the decisions and rulings.
Whether the information is sufficiently full to be sustainable, we do not propose to consider, as in our view the proceedings in the Recorder’s Court are entirely unau-' thorized. The charter not providing any remedy upon the obstruction of an alley, no offense exists, and therefore no complaint can be made,, until a by-law is adopted, coming *122within the powers given by the charter. In the case before us, it appears, without any conflict of testimony, that the alleged alley in controversy was never actually opened and used as such at all. It also appears that portions of it have been occupied under claim of freehold ' title under conveyances, and that the erections upon it now complained of were upon it when the by-law in question was passed. Without basing our decision merely upon the ex post facto character of this by-law, we are of opinion that until an alley has become actually open to the uses for which it is designed, the occupation or obstruction of it can not properly be punished under city by - laws. In giving power to regulate the use of these passages, and remove obstructions from them, the charter contemplates the preservation of actual and not theoretical easements, and the protection of the community against actual nuisances which interfere with the accustomed use of the p>assag’es- This is the species of offense set forth in the information, which alleges the interruption of an accustomed passage. Until the premises have been brought into actual enjoyment, so that their obstruction interferes with an existing user, there would be no propriety in permitting the municipal authorities to legislate upon it; and we do not -regard the charter as intending it. Questions of title may possibly come up incidentally without objection in many summary proceedings. We give no opinion upon this abstract question, But where it appears on the face of the prosecution that the question of title is not incidental, but is the main point in issue, we think the case falls beyond the jurisdiction of the municipal tribunal, and the rights of the parties must be settled in the public courts, where ample remedies exist for all parties aggrieved.
We think the conviction wrong, for these reasons, and it must be quashed.
Ohristiancy J. concurred. *123Martin Ch. J. concurred in the result.