The opinion
BURNETT, J.
(Concurring Specially). — Under the Portland charter the rule is that the offices of mayor, commissioner and auditor áre to be filled by election at large by the legal voters of the city: Section 21. The principal exception is that upon a vacancy occurring in the office of mayor or commissioner the council shall appoint an eligible person to fill the vacancy until the next general municipal election: Section 30. The further exception as outlined in Section 123 has in a sense served its purpose in the initial classification of the commissioners so that an entire change in the personnel of the council will not be effected at any general election. It must, however, be counted as a factor in the investigation as indicating that there may be an election to fill an unexpired term of a commissioner so as to preserve that adjustment. In my judgment, it is not necessary that there should* be a special ordinance providing for elections to fill vacancies. In that respect the charter is self-executing in effect. The election machinery is at hand and available. The power of the council to appoint sustains the tenure of the appointee only until the next general municipal election. The power of election then comes automatically into operation. The appointee has enjoyed all possible benefits of the exception to the rule which requires that officers shall be elected by vote of the people at large. To continue him longer in office would be to legislate judicially and impair the authority of the people to choose their own officers.
*573 For these reasons, on the questions discussed at the hearing, I concur in the opinion of Mr. Justice Harris.