OFFICIAL OPINION No. 18

OFFICIAL OPINION No. 18 t!..Ct No. 281 (1972 )- D eed of conveyance-Discretionary au thorit y of Gover- nor-Approval of tr ansaction 1. The Governor has discretion to transfer less than the total number of acres authorized by Act No. 281 ( 1972) where the transferee does not require all of the property for public school purposes and where the Act provides for a reversion of land not used for public school purposes. !.. Under the statutory scheme of Act No. 281 (1972 ) the Governor is vested with discretion to either apprnve or disapprove the transaction and approve or disapprove the deed of conveyance; this confers upon him the discretionary authority to approve only so much of the conveyance as the Governor deems advisable. Honorable Milton J. Shapp Governor Commonwealth of Pennsylvania Harrisburg, Pennsylvania Dear Governor Shapp : Harrisburg, Pa. March 5, 1973 You have inquired concerning the legality of transferring 42 acres of land to the School District of the City of Harrisburg pursuant to Act No. 281 of December 4, 1972. In your letter of February 2, 1973, you have advised that the Harrisburg School Board has passed a resolution requesting the Commonwealth to transfer to it only 42 of the 46 acres of land authorized for trans- fer. It is our opinion and you are advised that you can legally transfer only 42 acres of the land described in Act No. 281 and this should be accomplished by a deed of conveyance which is being prepared by this Department and will shortly be forward· ed to you for signature. OPINIONS OF THE ATTORNEY GENERAL 41 The resolution passed by the School Board recites the fact that the School District only requires 42 of the 46 acres of land for use for public school purposes and that the School District has no present or future need of the remaining four acres. Since Act No. 281 provides for the reversion to the Commonwealth of any portion of land which is not used for public school purposes, it is our opinion that such reversionary clause is sufficient authority for you to convey only that portion which is intended to be used for public school purposes. Under the statutory scheme of Act No. 281 you are vested with discretion to either approve or disapprove the transaction. Fur- thermore you are given explicit authority to approve or disap- prove the deed of conveyance. The pertinent provisions of the Act are as follows : "Section 1. The Dept. of Property and Supplies, with the approval of the Department of Public Welfare and the Governor, is hereby authorized and directed on behalf of the Commonwealth of Pennsylvania, to grant and convey to the School District of the City of Harrisburg, the following tract of land .... ****** "Section 3. The deed of conveyance shall be approved by the Department of Justice and shall be executed by the Secretary of Property and Supplies in the name of the Commonwealth of Pennsylvania, with the approval of the Secretary of Public Welfare and the Governor." (Emphasis added. ) As noted in Brice v. Robertson House Moving, Wrecking & Salvage Co., 249 N.C. 74, 105 S.E. 2d 439 (1952), and State ex rel. Pilkinton v. Bush, 211 Ark. 28, 19-8 S.W. 2d 1004 ( 1972), the use of the word "approval" in a statute does not impose a formal or ministerial duty but rather confers upon the party who must give approval the discretionary function of approving the trans- action since the word approval connotes the exercise of discre- tion. Again, in Commonwealth v. Benedum Trees Co., 69 Dauph. 269, 271 (1956), the Court held that the word "approved" refers to an exercise of independent analysis and conclusion. Consequently, Act No. 281 of December 4, 1972, must be in- terpreted as giving discretionary authority to grant and convey the land and to approve the deed of conveyance, and you are therefore authorized to approve only so much of the conveyance as you determine advisable based upon all of the surrounding circumstances. Inasmuch as the Harrisburg School District ad- vises that they only have need of 42 of the 46 acres of land de- scribed in Act No. 281 for publc school purposes and inasmuch as the Board merely requests a conveyance of 42 acres. you are hereby advised that you can, in the exercise of your discretion- 42 OPINIONS OF THE ATTORNEY GENERAL ary authority granted in Act No. 281, grant and convey only 42 of the 46 acres of land described therein. Very truly yours, RICHARD J . ORLOSKI Deputy Attorney General ISRAEL P ACKEL Attorney General