dissenting.
The question in this case is whether Chapter 360, RSMo Supp.1975, the Missouri Health and Educational Facilities Authority Act, is constitutional. I would hold that it is not because of its failure to delimit the wide discretionary powers given the Authority.
The Authority is empowered, to engage in three types of financial assistance — leasing of Authority-owned facilities, making loans to finance new institution-owned facilities, and making loans for refinancing existing institution-owned facilities, § 360.045(6), (7), (13), (14). The only limitation on the exercise of these powers, and guidance as to which of the eligible Missouri institutions should be assisted, is found in § 360.045(14), pertaining solely to the refinancing of existing institution-owned facilities. Section 360.045(14) sets standards of financial hardship, reduced cost of care or education, and savings to third parties. Adherence by the Authority to these standards may be objectively determined and enforced by any party or body having cause to do so, whether it be the General Assembly, applicant institutions, reviewing courts, or the public. The Authority is granted broad, uncontrolled discretion as to the exercise of its power to lease Authority-owned facilities and to make loans to finance new institution-owned facilities.
Such grants of discretion to administrative authorities raise two constitutional concerns, that of separation of powers, Mo. Const.Art. II, § 1, and Art. Ill, § 1, and of due process, Mo.Const.Art. I, § 10. These provisions are not unrelated McGautha v. California, 402 U.S. 183, 272, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971) (Brennan, J., dissenting). Both are concerned with the prevention of arbitrary exercise of power. As Professor Raoul Berger has had cause to note, quoting Charles Mcllwain:
“ ‘[T]he two fundamental correlative elements of constitutionalism for which all lovers of liberty must yet fight are the legal limits to arbitrary power and a complete political responsibility of government to the governed.’ ” Berger, The Constitution and the Rule of Law, 1 West.New Eng.L.R. 261, 274 (1978).
Article II, § 1 of the Missouri Constitution, reads as follows:
“The powers of government shall be divided into three distinct departments— the legislative, executive and judicial— each of which shall be confided to a separate magistry, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall-- exercise any power properly belonging to either of the others, except in the instances in this constitution expressly directed or permitted.”
Article III, § 1 of the Missouri Constitution, reads as follows:
“The legislative power shall be vested in a senate and house of representatives to be styled ‘The General Assembly of the State of Missouri.’ ”
These provisions historically have been implemented by the “delegation doctrine.” This Court today takes another step along the path of reading all meaning out of this doctrine. I acknowledge that the opinion in ABC Security Service, Inc. v. Miller, 514 S.W.2d 521, 524 (Mo.1974) declares that “a statute which vests discretion in administrative officials must, generally stated, include standards for their guidance in order to be constitutional.” However, I would overrule ABC. The general rule it purports to declare is a fiction. The exceptions it *89creates are larger than the rule itself. I can only hope that some future Court will reexamine and question the wisdom of proceeding along this path.
I believe that the delegation doctrine properly requires that statutes granting discretionary power to administrators be declared unconstitutional if they do not “set standards sufficiently precise to ensure that the relevant agency receives clear signals regarding the policy it is expected to carry out.” Wright, Beyond Discretionary Justice, 81 Yale L.J. 575, 581 (1972).
Various justifications have been articulated for the doctrine:
(1) Mr. Justice Harlan said in 1963: “The principle that authority granted by the legislature must be limited by adequate standards * * * insures that the fundamental policy decisions in our society will be made not by an appointed official but by the body immediately responsible to the people.” Arizona v. California, 373 U.S. 546, 626, 83 S.Ct. 1468, 1511, 10 L.Ed.2d 542 (1963) (Harlan, J., dissenting in part).
(2) Mr. Justice Brennan said in 1967: “Formulation of policy is a legislature’s primary responsibility, entrusted to it by the electorate, and to the extent Congress delegates authority under indefinite standards, this policy-making function is passed on to other agencies, often not answerable or responsible in the same degree to the people.” United States v. Robel, 389 U.S. 258, 276, 88 S.Ct. 419, 430, 19 L.Ed.2d 508 (1967) (Brennan, J., concurring in result).
(3) Judge Wright said in 1972: “At its core, the doctrine is based on the notion that agency action must occur within the context of a rule of law previously formulated by a legislative body * * * . When Congress is too divided or uncertain to articulate policy, it is no doubt easier to pass an organic statute with some vague language about the ‘public interest’ which tells the agency, in effect, to get the job done. But while this observation is no doubt correct, it seems to me to argue for a vigorous reassertion of the delegation doctrine rather than against it. An argument for letting the experts decide when the people’s representatives are uncertain or cannot agree is an argüment for paternalism and against democracy.” Wright, supra, 81 Yale L.J. at 583, 584-585.
The Harlan-Brennan-Wright view would use the delegation doctrine so as to implement a primary concern for accountability. It would satisfy this primary concern by requiring the fixing of standards in statutes. I agree.
Our system of government becomes basically flawed when our governors are permitted to assume direction of the lives of the governed without accountability to them. Experience may teach us that our economic and social problems have become so complex that it is unrealistic to require the General Assembly to “set standards sufficiently precise to ensure that the relevant agency receives clear signals regarding the policy it is expected to carry out.” However, we must make the effort until such time as the people see fit to change the system of government.
The United States Supreme Court has declared that an act of Congress does not constitute an unconstitutional delegation of legislative power “if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.” American Power & Light Co. v. Securities & Exchange Commission, 329 U.S. 90, 105, 67 S.Ct. 133, 142, 91 L.Ed. 103 (1946). American Power was cited with approval in State ex rel. Priest v. Gunn, 326 S.W.2d 314, 320 (Mo. banc 1959).
I would hold that the General Assembly “clearly delineates the general policy” only when it sets standards sufficiently precise to ensure that the relevant agency receives clear signals regarding the policy it is expected to carry out. Chapter 360 fails to do this with respect to the Authority’s powers to lease Authority-owned facilities and to make loans to finance new institution-owned facilities.
Professor Davis expresses a view which, while different in thrust is not incompatible with the Harlan-Brennan-Wright view. In his treatise on administrative law he pays *90deference to the idea that “[ajdministrators should not have unguided and uncontrolled discretionary power to govern as they see fit,” but asserts that the basic purpose of the delegation doctrine should be changed: “It should no longer be either to prevent delegation of legislative power or to require meaningful statutory standards. * * * The purpose should be to do what can be done through such a doctrine to protect private parties against injustice on account of unnecessary and uncontrolled discretionary power.” 1 Davis, Administrative Law Treatise, 2d Ed. pp. 206, 208 (1978). The Davis view would hold to “the requirement of meaningful standards, except that when the legislative body fails to prescribe the required standards for discretionary action in particular cases, the administrators should be allowed to satisfy the requirement by prescribing, them within a reasonable time.” Id. at 211.
Davis substantially abandons the concern for accountability. I do not disagree with his purpose nor reject his approach as a partial solution to the problem of administrative discretion. Legislative rule-making and agency rule-making are not mutually exclusive. Both may and should be used in the effort “to protect private parties against injustice on account of unnecessary and uncontrolled discretionary power.” See Tosto v. Pennsylvania Nursing Home Loan Agency, 460 Pa. 1, 331 A.2d 198, 203-204 (1975). However, I believe Davis’s concerns are better viewed as a matter of due process.
Article I, § 10 of the Missouri Constitution provides:
“That no person shall be deprived of life, liberty or property without due process of law.”
The parties to this litigation do not raise due process claims. Due process concerns should be addressed, however, because they are inherent in grants of administrative discretion, are related to the concerns underlying the delegation doctrine, and because the virtual abandonment, by the principal opinion, of any solicitude for the delegation doctrine and political accountability causes the due process concerns to be increasingly acute.
Due process, as a flexible concept, requires determination of the existence of a private life, liberty or property interest which is the subject of infringement by the state, and of the process that is due to protect the interest. See Lewandowski v. Danforth, 547 S.W.2d 470, 472 (Mo. banc 1977), cert. den. 434 U.S. 832, 98 S.Ct. 116, 54 L.Ed.2d 92.
The private interests involved here are those of institutions falling within the statutory definitions, § 360.015(4) and (6), proposing facilities falling within the statutory definitions, § 360.015(3) and (5), and, in the case of proposals for refinancing of existing institution-owned facilities, showing that the desired assistance would alleviate financial hardship, result in lesser costs, and produce savings to third parties. If these statutory requirements are met, a health or education institution has a prima facie claim, which, unless one assumes that all such claims must be approved, is subject to the discretion of the Authority.
It is beyond argument that, “the property interests protected by procedural due process extend well beyond actual ownership of real estate, chattels, or money.” Board of Regents of State Colleges v. Roth, 408 U.S. 564, 571-572, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 548 (1972). While the precise extent of property protected by Federal due process is unclear, id., a number of courts and authorities indicate that statutory eligibility for a government benefit, as would be at issue here, is protected. See Elizondo v. State Dept. of Revenue, Motor Vehicle Div., 570 P.2d 518, 522 (Colo. banc 1977) (statutory eligibility for probationary driver’s license upon suspension of driver’s license); Baker-Chaput v. Cammett, 406 F.Supp. 1134, 1138 (D.N.H.1976) (statutory eligibility for local general assistance benefits); Davis v. United States, 415 F.Supp. 1086, 1090-91 (D.Kan.1976) (statutory and regulatory eligibility for employment disabilities compensation). See generally, Reich, The New Property, 73 Yale L.J. 733 (1964).
*91Other courts have found interests protected by due process in similar circumstances without explicitly designating the interest as one of life, liberty or property. See Holmes v. New York City Housing Authority, 398 F.2d 262, 264-265 (2nd Cir. 1968) (interest in fair opportunity to petition for admission to public housing and to obtain review of disposition of applications); Hornsby v. Allen, 326 F.2d 605, 609-610 (5th Cir. 1964) (applicant’s and public’s interest in fair and objective disposition of applications for liquor license); Environmental Defense Fund, Inc. v. Ruckleshaus, 142 U.S.App.D.C. 74, 439 F.2d 584 (1971) (interest in determination of whether use of pesticide DDT was subject to suspension under statute); Smith v. Ladner, 288 F.Supp. 66 (S.D.Miss.1968) (statutory eligibility for not-for-profit corporation charter).
The common thread running through these cases is that private persons have a right to expect that the government will not act in an arbitrary manner in its relations with them. The relationship created by the government with a statutorily defined group in chartering corporations, in providing housing or other assistance, in licensing business, or in financing health and education facilities may or may not create a property interest per se, but in establishing a statutory prima facie relationship there is certainly created a liberty interest in being free from arbitrary administration of the relationship.
In each of the cases, cited supra, in which a due process interest was found to exist, the court held that due process required the administrator to promulgate the rules or policies which would govern his exercise of the discretion which was vested in him under the relevant statute. Thus, in Elizondo, 570 P.2d supra at 522, the Court held that:
“[D]ue process requires that the Department of Revenue promulgate rules or regulations to guide hearing officers in their decisions regarding requests for probationary licenses.”
In Environmental Defense Fund, 142 U.S.App.D.C. at 88, 439 F.2d supra at 598, the court reasoned:
“Courts should require administrative officials to articulate the standards and principles that govern their discretionary decisions in as much detail as possible. Rules and regulations should be freely formulated by administrators, and revised when necessary * * *. When administrators provide a framework for principled decision-making, the result will be to diminish the importance of judicial review by enhancing the integrity of the administrative process, and to improve the quality of judicial review in those cases where judicial review is sought.”
In Baker-Chaput, 406 F.Supp. supra at 1140, the court reasoned:
“The absence of standards creates a void in which malice, vindictiveness, intolerance or prejudice can fester. Plaintiff has a paramount interest in receiving those benefits for which she statutorily qualifies. In addition, as a member of our society, she has an interest not only in being treated fairly by the administrative agency, but, just as important, in believing that she has been treated fairly. A standardless method of administration negates these interests.”
These same reasons apply to the standard-less exercise of administrative discretion under Chapter 360.
I would, therefore, hold that the administrative Authority must proceed in the exercise of discretion granted to it under the statute according to announced rules, policies or criteria. Situations will doubtlessly arise in which an agency is unable to promulgate rules to govern its exercise of discretion and in which ad hoc case by case implementation of statutory power will be necessary. The presumption, however, should be that the agency will proceed by rules or be prepared and able to state why it is necessary to do otherwise.
Because the principal opinion fails to delimit the wide discretionary power delegated to the Authority in Chapter 360, thus diluting Art. II, § 1, Art. Ill, § 1, and Art. I, § 10 of the Missouri Constitution, I respectfully dissent.