(dissenting) — The functions and over-all duties of the speaker of the house of representatives are certainly comparable, if not greater, than those of the lieutenant governor, except for the infrequent occasions when the latter official functions as the chief executive of the state because the governor is absent from the state temporarily for a few hours or days. The compensation of the lieutenant governor is five hundred dollars per month. The compensation of the speaker of the house is one hundred dollars per month in his capacity as a member of the legislature. Under the house resolution which is questioned in this case, the speaker of the house would receive an additional sum of four hundred dollars per month for “extra work and expenses required in performing the duties of the speaker of the house of representatives in completing the work of the thirty-fifth session of the legislature, and for time spent on interim duties.”
The fact that two state officials receive equal pay for comparable work, duties, and responsibilities seems not only proper but should be shocking to no one. In any event, the only basic question before us is one of law; that is, whether or not the house resolution authorizing four hundred dollars per month as compensation for the speaker clearly violates any provisions of our state constitution. Unless it does so, the instant case, in my opinion, is certainly one where the members of the court could well exercise judicial self-restraint by leaving the handling of the particular problem and the determination of the speaker’s compensation with the legislature.
The legal conclusion reached by the majority is that the house resolution here in question is repugnant to Art. XXVIII, amendment 20, § 1, of our state constitution. The reasoning of the majority is that the speaker is a member of *631the legislature; that his functions and duties as a legislator and as the speaker of the house are inseparable. From this premise or assumption, the majority reasons that the speaker is and must be an elected state official within the purview of Art. XXVIII of the constitution; that he cannot logically be anything else; and, finally, that his compensation can be fixed only by joint action of both houses of the legislature. I do not agree.
Art. XXVIII, amendment 20, § 1, of the state constitution provides:
“. . . All elected state officials shall each severally receive such compensation as the legislature may direct. The compensation of any state officer shall not be increased or diminished during his term of office, except that the legislature, at its thirty-first regular session, may increase or diminish the compensation of all state officers whose terms exist on the Thursday after the second Monday in January, 1949.”
It seems to me that the speaker of the house realistically has a dual status: (a) as a member of the legislature, elected by the voters; (b) as the presiding officer of the house of representatives, elected by the members of that body. I simply cannot agree with the premise that the indicated dual status of the speaker of the house must be telescoped and considered conceptually as one and the same position. I say this well aware of the fact that it is always the one and same individual who performs in the above-mentioned dual capacities. Thus, I reach the conclusion that the speaker, in his capacity as such, is not an elected state official prescribed by the above constitutional provision (Art. XXVIII), and that compensation for the services as speaker of the house need not be fixed by joint action of both the house and the senate, but may be constitutionally determined (as in the instant case) by action of the house of representatives.
In the first legislative session of this state after the adoption of the state constitution, a question was raised as to the constitutionality of a house resolution providing additional compensation for the speaker of the house. However, the *632resolution was passed. The member of the house who moved its adoption had participated in the drafting of our state constitution. Since that first session, it has been a consistent legislative practice for the house to provide by resolution for additional compensation for the speaker for services performed as such. This legislative practice for half a century involving an interpretation of our state constitution should be accorded great weight and, I think, should be followed by this court. State ex rel. Todd v. Yelle (1941), 7 Wn. (2d) 443, 110 P. (2d) 162.
The majority opinion is not based on the ground that the resolution violates the constitution by increasing the compensation of a state official during his term of office, but this point deserves comment. In State ex rel. Brown v. Blew (1944), 20 Wn. (2d) 47, 145 P. (2d) 554, we held that a court reporter is not a public officer. We said that five elements are essential to make his position a public office.
“ ‘ “ . . . (1) It must be created by the Constitution or by the legislature or created by a municipality or other body through authority conferred by the legislature; (2) it must possess a delegation of a portion of the sovereign power of government, to be exercised for the benefit of the public; (3) the powers conferred and the duties to be discharged must be defined, directly or impliedly, by the legislature or through legislative authority; (4) the duties must be performed independently and without control of a superior power, other than the law, unless they be those of an inferior or subordinate office created or authorized by the legislature and by it placed under the general control of a superior officer or body; (5) it must have some permanency and continuity and not be only temporary or occasional. . . . ” ’ ”
I do not believe the office of speaker of the house meets the above five tests. He is an officer only of the house of representatives.
There is a further reason why the resolution is not repugnant to the constitutional prohibitions against raising or decreasing the salary of a public officer during his term of office; “. . . The inhibition against the reduction of salaries of officers relates only to those having terms of office and not to those whose tenure is subject to the will *633and pleasure . . . ” of the appointing power. State ex rel. Heffernan v. Hoquiam (1936), 186 Wash. 50, 56 P. (2d) 1012. The term of office of the speaker of the house is fixed only by the house rules; it is subject to change at any time.
It is my opinion that the functions and the status or office of the speaker (a) as such, and (b) as an elected member of the legislature, are divisible and separate; therefore, that the speaker in his capacity as such is not an elected state official as those words are used in Art. XXVIII of the constitution. I believe that the speaker in his capacity as such is not a public officer or state official as those words are used in Art. II, § 25, and Art. Ill, § 25, of the constitution, and that the resolution fixing his compensation at four hundred dollars per month is not repugnant to the constitution.
In considering this case the question has arisen as to whether the legislature by joint action of both houses prior to permanent organization of the house — i.e., prior to selection of a permanent speaker — could provide compensation for the permanent speaker which would be available to him during his ensuing term without violating Art. II, § 25, of the constitution. If, as the majority says, the functions or status of the speaker, as such, cannot be separated from his functions and status as a legislator, any increase in compensation would be an increase in the compensation of a legislator or state official in violation of Art. II, § 25.
For the reasons indicated, I disagree with the majority opinion. I am convinced that the writ of mandamus should not be issued.