AGO 1953 No. 22 - Apr 29 1953
ASSIGNMENTS ‑- REVOCATION ‑- ASSIGNMENT OF RETIREMENT BENEFITS ‑-JUDGES ‑- RETIREMENT BENEFITS ‑- ASSIGNMENT REVOCATION.
Pension benefits due a retired supreme court judge under RCW 2.12 are assignable.
Such an assignment may be revoked at any time before the payments become due and a subsequent assignment will be effective.
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April 29, 1953
Honorable Charles R. Maybury
Olympia, Washington Cite as: AGO 53-55 No. 22
You have requested our opinion upon the legality of a revocation and reassignment of payments due a retired judge under the judges' retirement act.
We conclude that the revocation and reassignment are effective.
The problem arises out of the following circumstances:
On February 11, 1953, your office received an assignment executed by William J. Millard, assigning state warrants payable to him for the months of February through December, 1953, to the Olympia Branch of the Seattle First National Bank. The warrants are issued in payment of retirement benefits due him as a retired supreme court judge pursuant to RCW chapter 2.12. On April 20, 1953, your office received a written notice of revocation of that assignment. On the same date, a new assignment signed by Judge Millard was received by your office. It requests that his retirement checks for the months of April through November, 1953, be assigned to G. I. Griffith, Olympia. The entire file has been forwarded to this office for review and advice.
Specifically you ask whether your office would be acting within the scope of its legal authority in carrying out these requests. The answer is yes, provided the revocation and the second assignment are effective.
[[Orig. Op. Page 2]]
Under the judges' retirement act (chapter 2.12 RCW) the state treasurer becomes the trustee of the judges' retirement fund. There is no statutory prohibition against the assignment of payments due under the act. In the absence of any statute, we assume that the ordinary common-law rules regarding fiduciary relationships would apply. There can be no doubt that a trustee or custodian of a fund at common law had authority to accept and carry out the provisions of an assignment unless prohibited from doing so by the terms of the trust. There is no such prohibition here.
The rule is that a pension for past services, where the pensioner is not subject to call for further public service, is assignable except where prohibited by statute. Sganga v. Police and Fireman's Pension Fund Com'n., 64 A. (2d) 651 (1949 N.J.);Passaic Nat. Bank etc. Co. v. Eelman, 183 Atl. 677 (N.J.); 48 C.J. 792.
A retired supreme court judge is not subject to call for further public service. SeeState ex rel. N. W. Oyster Co. v. Meakim, 34 Wn. (2d) 131, holding Rem. Supp. 1943 § 11054-4 (now RCW 2.12.040) unconstitutional. Nor is there any statutory prohibition against assignment of the pension payments. The rule of theSganga case,supra, is applicable and we conclude that the pension benefits are assignable.
The remaining question is whether or not the revocation is effective. If so, the second assignment is, of course, valid.
An assignment may be revoked at any time before the rights of the assignee become fixed. Sganga v. Police & Fireman's Pension Fund Com'n., supra, 6 C.J.S. 1134, Assignments, § 79. The right of the assignee to receive these payments became fixed at the same instant that the right became fixed in the assignor. The right to the pension payment covering the preceding month becomes fixed at the earliest moment it could be paid under the statute. RCW 2.12.030 expressly establishes the time to be "on or before the tenth day of each month." At 12:01 a.m. on the first of the month, the assignment operated to transfer all right, title and interest of the pensioner in the matured payment to the assignee. None of the expected payments for future months were yet fixed obligations. The assignment was still revocable as to future payments. The revocation of [[Orig. Op. Page 3]] April 20, 1953, effectively terminated all rights of the Olympia Branch of the Seattle First National Bank to pension payments maturing thereafter.
You are advised that the assignment of April 20, 1953, to G. I. Griffith, should be honored.
Very truly yours,
RALPH M. DAVIS
Assistant Attorney General