Section 3.81 Unlawful Delegation of Legislative Authority

• Library: Local Government Deskbook (2017 Ed.)

A. (§3.81) Unlawful Delegation of Legislative Authority

It is common for governing bodies to delegate authority to boards or commissions. But not all powers may be delegated.

The Missouri Constitution is interpreted as prohibiting a city or county from delegating its legislative power. See Mo. Const. art. II, § 1 (separation of powers). Delegation of the governing body’s power is allowed by law when no discretion is permitted to the person to whom authority is delegated or when there is delegation of the power to determine facts upon which application of articulated legal standards is dependent. But an ordinance clothing an administrative officer with arbitrary discretion without definite standards or rules for guidance is invalid. See:

· Lux v. Milwaukee Mechs.’ Ins. Co., 15 S.W.2d 343 (Mo. banc 1929)

· Porporis v. City of Warson Woods, 352 S.W.2d 605, 607 (Mo. 1962)

· Fred Wolferman Bldg. Co. v. Gen. Outdoor Adver. Co., 30 S.W.2d 157, 160 (Mo. App. W.D. 1930)

Thus, the act of executing a contract, the terms of which have been approved by the city council, may be delegated because there is no discretion permitted, State ex rel. Prichard v. Ward, 305 S.W.2d 900, 902 (Mo. App. W.D. 1957), and such an act is, therefore, “administrative,” Reynolds v. City of Independence, 693 S.W.2d 129, 131 (Mo. App. W.D. 1985). The enforcement of an...