GANTT, C. J.
— The appeal in this cause is from a judgment of the circuit court of Jackson county in a proceeding by Kansas City to condemn certain lands for a public park under an ordinance of said city, number 6682, entitled “An ordinance to open and establish a public park in the North Park District in Kansas City, Missouri, to be known as North Terrace,” approved July 26, 1895. The property taken and described in said ordinance is shown by the plat to consist of about two hundred acres of land, extending in a general direction east and west something more than a mile from Garfield avenue to the eastern city limits, and lying south of the Chicago and Alton Railroad track, and includes the summits of the bluffs which overlook the Missouri river and the adjacent county. The charter of Kansas City was adopted and became operative May 9, 1889, in pursuance of the power granted by section 16 of article IN of the Constitution of Missouri, which provides that “any city having a population of more than one hundred thousand inhabitants may frame a charter for its own government, consistent with and subject to the Constitution and laws of this State,” etc., and providing further that “such charter may be amended by a proposal therefor made by the lawmaking authorities of such city” and “accepted by three-fifths of the qualified voters of such city, voting at a general or special election, and not otherwise.” On June 6, 1895, the charter was amended by a three-fiftlis vote of the qualified voters in accordance with this constitutional permission. By the first section of the first article of the said charter Kansas City was empowered to acquire lands “for public parks, cemeteries,” etc. By the amendment of June 6, 1895, provision was made for the appointment of a board of park commissioners whose duty it was made to devise a system of public parks for the usé of the inhabitants of said city, and the common council was authorized and empowered to provide by ordinance for the purchase, condemnation or [268]*268otherwise obtaining land for public parks, etc. By the seventh section of the amendment “the territory within the then city limits was divided into three park districts to be known as West Park District, North Park District, and South Park District, and the boundaries of each specifically outlined, and by section 8 it was made the duty of the park commissioners to provide at least one park in each park district. By section 10 of the amendment, whenever the common council determined to condemn land for a public park it is required to provide by ordinance the time and mode of payment of special assessments upon the real estate within the limits within which private property shall be deemed benefited by the proposed improvement, and be assessed and charged to pay compensation therefor. By ordinance number 6682 the benefit district prescribed in the North Park District, included that part of the city lying north of Fifteenth street and east of Main street between Fifteenth and Ninth streets and the Missouri river. The ordinance provides for special assessments against private property within the benefit district, which may be paid in twenty annual payments or instalments in accordance with the charter. It may be well to remark at this point that it is not questioned that the ordinance was regularly passed, und it is conceded that all the parties were properly brought into court, both those whose lands are condemned, and taken for the park, and those whose lands are to be charged within the benefit district.
Six hundred and ninety-nine different tracts, lots, or parcels, were condemned for the park and about eighteen thousand separate tracts assessed to pay the costs of said park. The assessed valuation of the land, without the improvements in the said benefit district, is $12,609,930, which is shown to be about one third its actual value, and the total cost of the park $603,113.04. In other words it will require [269]*269a levy of $16.10 on each thousand dollars worth of real estate in said tax district to pay for the said park and this $16.10 under the charter can be paid in twenty different instalments or a trifle over eighty cents a year.
The verdict in the cause was rendered August 13, 1896, and covers five hundred and sixty nine pages. That verdict the appellants have not brought to this court. Motions for new trial were filed and heard and overruled January 2, 189?. Of all the persons affected by this proceeding no party whose property was condemned has appealed, and of the owners of the eighteen thousand tracts assessed with this special tax only two have appealed, Langston Bacon, Esq., and Bhilip S. Brown.
It is stipulated by counsel that Mr. Brown did not appear or participate in the trial of the cause in the circuit court, or introduce any evidence upon the question of benefits. Mr. Bacon is the owner of lots 81 and 82 in the continuation of Smart’s Addition number 3 to Kansas City and he was assessed $161.84 as benefits to said two lots. Other facts may be noted in the discussion of the errors assigned.
It may aid us in our determination of the questions raised ■on this appeal to keep in mind that the transcript sent to this court does not contain the evidence heard by the court and jury, but there is a recital in the bill that “evidence was introduced tending to prove all the facts upon which each instruction given, is founded,” and that it does show that Mr. Brown took no part in the trial in the circuit court and hence saved no exception to rulings on evidence.
I. The first point raised both orally and in the briefs by the appellants is that the charter of Kansas City and the amendment thereto adopted June 6, 1895, under which this proceeding was had and conducted in the circuit court are unconstitutional. If sustained the whole proceeding must fall. The freeholders’ charter of Kansas City adopted by the qualified voters of Kansas City pursuant to the authority [270]*270conferred upon them by section 16, article IX of the Constitution has been sustained by the unanimous judgment of every member of this court every time it has come before it for adjudication. It was directly assailed soon after its adoption in State ex rel. Kansas City v. Field, 99 Mo. 352, and it was held without division or dissent that when a city having a population of more than one hundred thousand inhabitants, framed and adopted a charter for itself for its local municipal government, such charter superseded all other charters and laws pertaining to its municipal affairs and consequently that the charter of 1889 controlled in the matter of grading and regrading the streets of said city, instead of the act of 1885. The same result was reached in the subsequent cases of Kansas City v. Ward, 134 Mo. 172, and Kansas City v. Marsh Oil Co., 140 Mo. 458. In the latter case the constitutionality of the charter and the amendment thereto adopted by the three-fifths vote of the qualified voters of said city on June 5, 1895, was again drawn in question and upon a review of this provision of the Constitution and the decisions of this court, it was unanimously ruled that condemnation proceedings by a city organized under section 16 of article IX of the Constitution of Missouri in acquiring lands for streets, alleys, parks, etc., clearly fell within the domain of municipal government and regulation, and that this charter by virtue of the Constitution itself superseded the provisions of the general statutes on that subject so far as Kansas City was concerned. It would seem, therefore, that if any question is ever to be considered .settled by judicial construction, and if the salutary principle of stare decisis is not to be utterly ignored and discredited, the constitutionality of the freeholders’ charter of Kansas City adopted in 1889 is no longer an open question. Equally well settled and grounded upon the same organic law is the proposition that amendments to such charter adopted by a three-fifths vote pursuant to the Constitution became [271]*271a part of said charter and of equal dignity and authority with the original charter. To hold otherwise would be utterly illogical and to set at defiance the Constitution itself.
Indeed we do not understand these principles are seriously controverted by appellants, but their contention is that, owing to the further requirement of the Constitution that “such charter shall always be in harmony with and subject to the Oonstitution and laws of this State ” section 10 of the amendment under which these proceedings have been inaugurated and prosecuted, is invalid, because “not consistent with” and “out of harmony with the Constitution and laws of this State,” and particularly with the act of April 1, 1893 (p. 43), entitled “An Act empowering every city in this State which is now or may hereafter be organized under and by virtue of the provisions of section 16, article IX of the Constitution of this State, to establish and maintain for such city a system of parks and boulevards to be under ... a board known as Board of Parks and Boulevards Commissioners and defining the powers and duties of such commissioners.” By said act such cities were simply empowered to establish a system of parks and a mode of procedure was marked out which they could adopt, but by the eighteenth section of said act it was expressly provided that “the provisions of this act shall not abrogate or impair any right or power which such cities may now or hereafter have, by law, to buy or condemn or otherwise obtain land for parks, roads, boulevards or avenues, or opening, widening or extending the same, or for improvement or maintenance thereof, provided the powers conferred by this act shall not be in any way impaired or restricted by this section; but this act shall apply to all cities organized under section 16, article IX of the Constitution, any provisions in the charter of such city to the contrary notwithstanding.” Of this act,' whether valid or invalid, it is to be noted, first that it is not mandatory but merely permissive or enabling in its provisions. After its [272]*272passage the city was at liberty to avail itself of the powers conferred or not as the common council might deem it advisable and when it provided on its face that it should not abrogate or impair any right or power which such cities Tiien had or might thereafter have to buy or condemn paries it seems conclusive that it was the intention and purpose of the Legislature to leave such cities free to obtain other modes of procedure, under the express provisions of the Constitution, by amending their charter without .being amenable to the charge of repealing said act. The natural meaning of the words of the act taken in their ordinary signification is permissive and enabling only. They nowhere require any such city to establish and maintain a park, but on their face disclaim any repugnancy or inconsistency with the charter rights of such cities, to acquire land for parks in pursuance of their right to amend their charters, which is a continuing power. Secondly, the amendment of June 6, 1895, is in harmony with the Constitution and laws of Missouri. “Charters adopted under the express power conferred by article IX, section 16, will of necessity be more or less at variance, and that they will be unlike, in many respects, is within the contemplation of the Constitution. It is also within the fair contemplation of the Constitution that a charter thus adopted may embrace the entire subject of municipal government and be a complete and consistent whole.” [State ex rel. v. Field, 99 Mo. 352.] This statement was approved in express terms in Kansas City v. Marsh Oil Co., supra, and it was pointed out that these differences in detail do not show any want of harmony whatever. The power to frame a special charter for itself would be meaningless and nugatory if the construction should obtain that its provisions must all be in haec verba with the provisions relating to the. same subject in some other statute — relating to cities in their class. “Consistent with” does not import -exact conformity, but means substantial harmony -with the [273]*273principles of tbe Constitution and tbe general laws of tbe State. That a charter conferring the power to condemn lands for public parks is not repugnant to our laws is abundantly established by the power granted to the various cities of the State to exercise that right; that the special charter may prescribe a different modus operand% is immaterial so long as the fundamental principles of due and just compensation, and an opportunity to be heard is secured to the landowner. We find nothing in the charter of Kansas City upon the sirbject of the acquisition of public parks, that places it out of harmony with the Constitution or laws of the State, and the point is ruled against the appellants.
II. Another proposition urged by the appellants is that as the land is to be condemned for a public park and amounts to two hundred acres, it is a public improvement and a benefit to the entire public and should be paid for by the taxpayers at large, and the cost thereof assessed against the city and not against the land in the benefit or North Park District. In a word, that this park should be paid for by general taxation of the whole city, and that as a matter of law this court ought to hold the assessment on the land in the benefit district void.
That the condemnation of land for a public park is for a public use, must be conceded; otherwise there is no foundation for the exercise of the right of eminent domain. The recent authorities are uniform. [Kansas City v. Ward, 134 Mo. 172; County Court v. Griswold, 58 Mo. 175; Shoemaker v. U. S., 147 U. S. 297, and cases cited.]
But a public park is not only a public use, but throughout the States of this Union, it is held to be a local improvement, conferring such benefits in the way of increased value to the land in the benefit district in which it is situated, as to justify special assessments against private property to pay the compensation for the land condemned for such park. The argument of the learned counsel for defendants, [274]*274pressed to a logical conclusion, amounts to a denial of the right of the legislative body to define the benefit district, and to provide for parks by the assessment of benefits against real estate which can not be benefited to any such extent by such improvements, but must be paid for by general taxation. This court and the highest courts, Federal and State alike, have long ago repudiated the reasoning of appellants, and we see no reason for reversing decisions that have so long stood the test of judicial investigation, or for repeating the grounds upon which they are based.
A public park being a public use, and local assessments being a recognized and approved method of providing compensation for the lands devoted to such a purpose, it was competent for the common council to adopt that method ami fix the benefit district.
Under the charter provision, two questions of fact remained after the land to be condemned was selected and the benefit district defined, namely, whether the real estate in such district was especially benefited over all the property in the city at large, and, secondly, the extent of that special benefit. These facts were submitted to the freeholders jury in this case, and in the absence of error in the instructions, or fraud or misconduct of the jury, their verdict is conclusive. [Kansas City v. Baird, 98 Mo. 217; Kansas City v. Morton, 117 Mo. 446; In re Extension of Church Street, 49 Barb. 455; Shoemaker v. U. S., 147 U. S. 288-306.]
In making up their verdict the jury had the benefit not only of the testimony of the witnesses, but personally inspected the property themselves. When counsel ask this court to reject their verdict, they should at least have brought the evidence to this court and the verdict itself, but they have done neither. So much of the verdict as is contained in the transcript recites that, “In the matter of the proceedings in the above entitled cause to ascertain the just [275]*275compensation to be paid for the property, so taken or damaged, the undersigned jury on oath having heard the proof of all the parties in interest and having personally examined the property to be taken for said improvement, and the property to be assessed to pay for the property to be so taken, hereby render our verdict.”
Now it is a settled principle of appellate procedure that courts of appeals will not reverse the judgments of trial courts, unless an opportunity has been afforded such courts to review and correct their own rulings, and our statute expressly provides that “no exceptions shall be taken in an appeal or writ of error to any proceedings in the circuit court, except such as shall have been expressly decided b? such court.” E. S. 1889, sec. 2302. Now it stands admitted that Mr. Brown, one of the appellants in this court, took no part in the trial, and hence saved no exceptions, and offered no evidence and asked no instructions, and outside of the naked assertion in the motion for a new trial there is nothing to show that Mr. Brown was the owner of any of the property assessed with benefits, and he has not brought to this court that portion of the verdict which shows any assessment against the lots he claims to own, and the assessor’s books, offered in evidence on the motion for a new trial, nowhere sustain the charge that the jury took the assessor’s values as the basis of their assessment, of benefits to his said property. In his motion for new trial he makes no complaint whatever of instructions given or refused. He charges no misconduct on the part of the jury, nor does he allege that the assessment against his property was excessive nor that the assessment against the city at large, was too small.
Upon what is the circuit court to be convicted of error ? Let us see. "When the motion for new trial came on for hearing, Mr. Brown’s attorneys offered to call witnesses and submit oral testimony, whereupon Judge Slover advised [276]*276counsel tliat the rule of his court required parties to submit their evidence on motions for new trial in the form of affidavits, and unless good reason appeared he would not depart from his rule. Counsel then proposed to show by verbal testimony the conduct of the jury in making their verdict, to which counsel for the city objected because there was no charge of misconduct in the motion for new trial. Thereupon Mr. Brown said: “We propose to .show that the jury took some memoranda from the city assessor’s books and that the whole thing was figured on the basis used for general taxes.” Thereupon Mr. Brown offered to establish by the oral testimony of Kessler, secretary of the park board, and Gus. O. L. Sauer and Á. C. Wunnser, two of the jury, that the jury did not attempt to personally inspect and value the real estate; that the jury did not find that the property in the North Park District was ratably benefited according to the value in 1896; that the jury gave its attention wholly to valuing the property condemned and instructed Kessler to obtain the assessment of 1896 and used that as the basis of their verdict, except to add one per cent to the values of the property immediately fronting on the park; that such additional value only amounted to $1,000; that Kessler did furnish such tax assessment and computed the pro rata of the total cost of the park thereon as directed and that Kessler omitted certain property belonging to churches, schools, and the rights of way of several railroad companies, etc.
To this offer, counsel for the city objected, because, first, it is not the proper method of introducing evidence on a motion for new trial; second, because it does not tend to prove any of the allegations set forth in the motion for new trial, and third, it is incompetent,- irrelevant and immaterial for any purpose in this case.”
The circuit court sustained the objection, and his ruling is assigned as error
[277]*277That it was incompetent to prove by Sauer and Wurmser their own misconduct and that of their fellows to impeach their verdict, no one will longer question in Missouri. Was there error in refusing the oral testimony of Kessler under the circumstances ?
The appellants not only did not file the affidavit of Kessler or any other witness to the facts they offered to show, but they did not show the slightest effort to obtain Kessler’s affidavit, though he lived in the city and testified in the case. Nor did they file their own affidavits showing they had reason to believe the facts they averred, though fully warned by his honor, the circuit judge, that this was the practice in his court and would be adhered to unless good cause was shown for departing from it.
The practice adopted by the circuit court, of requiring affidavits in motions for new trial, obtains generally throughout the State. It economizes time and the court is advised of the exact statement which the witness will make and it is a perfectly reasonable requirement. Take the circumstances of this particular case. The jury had spent three weeks in investigating the case, the counsel had been given ample time to argue the evidence. About seven hundred different lots had been condemned and eighteen thous- and tracts assessed with benefits and two persons only were seeking to set aside this verdict affecting the rights of so many others. Can it be said that the circuit court was unreasonable in requiring some tangible evidence of the good faith of the movents for new trial ? We think not. It was a matter in which he was permitted to adopt rules for the government of his court and we find in his action no evidence' of oppression or abuse of discretion upon this ground alone. We think the offer of proof was properly rejected. But it is equally clear that in the absence of any allegation of misconduct on the part of the jury, or of excessive assessment against Messrs. Brown and Bacon, the proposed evidence [278]*278was not relevant to the motion for new trial, and was clearly incompetent.
If we are right then, that this offer of evidence was properly rejected, there is absolutely nothing left upon which we would be justified in setting aside the verdict and granting a new trial so far as Mr. Brown is concerned.
Turning now to the record for an examination of the errors assigned by Mr. Bacon. "We note first that he makes no complaint of the instructions given at the instance of the city but only of “illegal instructions on behalf of defendants whose property was to be taken in this proceeding.” Now neither Mr. Brown nor Mr. Bacon has brought to this court that portion of the verdict showing how much the jury awarded Mrs. Smart, or the Scarritts, or G-reen, for their property condemned for the park, and yet the meagre transcript filed here does indicate that the verdict on its face gave a specific description of each tract condemned “together with the owners or claimants thereof, and the value ascertained as just compensation therefor.”
All discussion as to values of the condemned property must be considered foreclosed in this court on the record stipulation that “evidence was introduced tending to prove all the facts upon which each instruction given is founded” and by the failure to bring the compensation allowed to the various owners, to this court. There is nothing before this court which would justify us in saying these instructions were erroneous, or to show that a single piece of property was valued too high. Mr. Bacon, like Mr. Brown, does not complain of excessive assessments against his two lots, and does not assign any misconduct in the jury, and neither he nor Mr. Brown complained that the city was only assessed $1 for benefits at large. Like Mr. Brown he filed no affidavit as to the misconduct of the jury.
We are thus brought to notice the point upon which so much stress has been laid in the arguments of counsel and [279]*279their briefs. "With one accord counsel for appellants insist that the verdict of $1 against the city at large should constitute sufficient ground for setting aside the verdict. And yet neither of the appellants assigned this fact as a ground for new trial. Under instructions which were not challenged the jury found this fact. Mr. Brown having neglected the trial, of course did nothing to counteract this finding, and Mr. Bacon seems not to have urged a larger finding against the city, but now in this court their contention virtually is that as a matter of law this finding vitiates the verdict. Counsel seemingly overlooked the fact that this is an action at law, and as was said by Sherwood, J"., in St. Louis v. Lanigan, 97 Mo. 178, “it has been established by a long line of decisions, so numerous as not to require citation, that in law cases, aside from those where mistake, fraud, prejudice or passion manifest themselves.......this court will not interfere by weighing the evidence on which the verdict is founded. . . . Besides, in cases of this sort now under consideration, it is to be observed that the judgment of the commissioners is not formed exclusively upon evidence submitted to them; they are required to view the premises and they have the advantage of an actual personal inspection and they are to be guided to some extent by that. .......And unless the court is clearly satisfied that they have erred in the principles upon which they have made their appraisal there is nothing for review and their report-should not be disturbed.” Citing Kansas City v. Butterfield, 89 Mo. 646; Kansas City v. Baird, 98 Mo. 215.
In Kansas City v. Smart, 128 Mo. 272, the jury returned a verdict against the benefit district for $140,186 and $1 against the city and on that point this court was unanimous that the smallness of the verdict against the city was no-ground for disturbing that verdict.
Learned counsel for appellants find no fault with that decision but on the contrary say both orally and in brief, [280]*280“Tliat was a proceeding to condemn a strip on each side of a street for the purpose of widening the same and it could he very justly said that the improvement was local in its character. Of course it was for the jury to determine the amount of benefits to the city at large, and also the benefits to the several parcels of land in the assessment district
But a street or boulevard is no more a local improvement than a park, and every reason for sustaining the one will uphold the other. The fact is that while witnesses testify in a general way that a street or park is a benefit to the whole city no measure of said benefit has been defined and the difficulty becomes apparent when we once attempt to say what would be a fair proportion to be borne by the city.
It thus stands conceded that in the absence of misleading instructions or evidence of misconduct a verdict of $1 against the city at large is not as matter of law ground to disturb a verdict in case like this, and in this case it can not be urged that this court shall say, after the approval of this verdict by the circuit court, that the evidence does not support it because a very insignificant part of the testimony has been preserved in the bill of exceptions, and we are not in a position to judge of the propriety of the action of the circuit court.
The task of passing upon the relative strength of evidence is a most delicate one for an appellate court under any circumstances in a law case, but certainly it will not enter upon such an inquiry when there is not enough preserved to enable it to see upon what the jury made up its verdict and caused the circuit court to approve it.
But we are also urged to say that the verdict must be set aside because appellants insist that the jury neglected to assess certain railroad, public schools and church property.
Counsel are in error as to the state of the record. The jury did inspect and pass upon the question of benefit to this property and in their verdict said “against all property in [281]*281the benefit district not hereinbefore specifically described and assessed with benefits we find and assess no benefits.”
In Kansas City v. Baird, 98 Mo. 221, this court said, “If the jurors must determine benefits then it is for them to say whether a particular lot is benefited at all or not: The council must determine the boundaries of the benefit district but the error of the argument is in assuming that all property in the district must be assessed. Whether it must all be assessed depends upon the fact whether it is all benefited and that is a question for the jury. This case is not to be confounded with those cases of assessment for local improvements where the assessment is made according to front feet. . . . Nor with those cases where the assessment is to be made according to the value of the property fronting on the street.”
If the charter required as a matter of law that church property, schoolhouses and the right of way easement of a railroad company should be assessed there would be much force in the contention of the defendants, but such is not the reading of the statute nor the interpretation placed upon it by this court in Kansas City v. Baird.
It may be freely conceded that it is perfectly lawful to assess such property if the jury finds it benefited and the authorities go that far, but when the law devolves upon the freeholders’ jury the duty of saying whether it is benefited or not and they find it is not, a wholly different proposition is presented.
It can not be affirmed that church property, a railroad right of way or a schoolhouse, is necessarily benefited by the establishment of a park in its vicinity. It can readily be seen we think that there is a marked distinction between the benefit which would accrue to a church by a good sidewalk in front of its property and a park several blocks away.
Many of the ablest courts in the country deny that a mere right of way of a railroad company is assessable for local improvements because it can be said the right of way [282]*282can not be benefited. [Muscatine v. Railroad, 88 Iowa, 291. Bridgeport v. Railroad, 36 Conn. 255; Philadelphia v. Railroad, 33 Pa. 41.]
This court in Nevada to use v. Eddy, 123 Mo. 562, declined to pass upon the question because not fairly presented on the record.
With tribunals of the highest character denying the liability at all it surely can not be said a jury 'might not reasonably find as a matter of fact in a particular case that there was no benefit. We still adhere to the construction placed upon the charter in Kansas City v. Baird, 98 Mo. 220.
III. Another point discussed by counsel is that in effect this special assessment violates sections 3 and 4 of article X of the Constitution of Missouri and sections 11 and 12 which limit the annual rate of taxation and the debt creating power of Kansas City to five per centum of the taxable value of the property in said city.
It has been so firmly settled by the decisions of this court that these provisions of our Constitution have no application to these special assessments levied to pay for local improvements that reference only need be made to these decisions themselves. [Farrar v. City of St. Louis, 80 Mo. 379; St. Joseph to use v. Owen, 110 Mo. 445; Clinton to use v. Henry Co., 115 Mo. 557; Lamar W. & E. L. Co. v. Lamar, 128 Mo. 188.]
Counsel only seek to escape the force of those adjudications by insisting that a public park is such a public improvement as takes it entirely out of the category of a local improvement.
But as we have already seen “a public park is not only a public use but a local improvement.” By the unbroken current of authority in this country the argument and conclusion of counsel falls because founded upon an untenable premise.
[283]*283IV. As to the point that the creation of the park board is a delegation of the legislative power belonging to the common council we answer that it was entirely competent for the people of Kansas City to limit by their charter the power of the common council. Such council has not inherent power to legislate without regard to the charter. It was entirely competent to require as a condition precedent a prior recommendation of the park board. Such a provision confers no power on the board to legislate but simply imposes a limitation on the council. Until the council acts no park can be established. [St. Louis v. Gleason, 93 Mo. 33.]
We are not confronted with the much discussed question of whether the council are bound to follow the board’s recommendation and it will be ample time to decide it when it arises. We have considered other minor points discussed by counsel and hold they are alike untenable.
New cases have been presented with more earnestness and ability and the argument has taken a wide range but as a matter of fact few cases have reached this court upon a record presenting so few exceptions upon which this court could act.
We find no reversible error in the record and affirm the judgment.
Robinson, Brace, Williams and Marshall, JJ., concur; Sherwood and Burgess, JJ\, express their views in a separate opinion in which they dissent.