¶1 I dissent from the order denying a rehearing of this cause for the reason that the questions which the Department has deemed it unnecessary to decide are the only questions presented by the record, while the ground upon which the decision is rested—the assumed exercise by the attorney-general of his discretion in deciding a question of fact—is shown by the record to have no existence.
¶2 All the allegations of the petition for the writ of mandate are admitted to be true. They show, among other things, that there are certain standing rules of the attorney-general’s office governing applications for leave to sue in the name of the people, and that this petitioner, in presenting his application *457 for leave to sue, complied in every particular with the rules. One of their requirements is that the relator must produce with his application the sworn complaint which he proposes to file, and they require nothing more for the purpose of satisfying the attorney-general that there is a meritorious cause of action. In this instance a sworn complaint was presented with the application for leave to sue. If the attorney-general was not satisfied of the good faith of the petitioner, or of the truth of the matters alleged on his information and belief—matters which in cases of this kind can rarely be within the personal knowledge of the relator—it would seem that he should have given him an opportunity of supporting his petition by corroborative affidavits, and no doubt he would have done so if he had deemed it material. But he did not consider this matter at all. He did nothing in the exercise of that discretion which the court assumes that he exercised in denying the application, and this is affirmatively shown by the record. The petition sets forth a copy of the written opinion of the attorney-general, giving his .reasons, and his only reasons, for denying the application. In that opinion he assumes the truth of every fact alleged in petitioner’s complaint and refuses leave to sue upon the ground,—1. That the complaint does not state a cause of action; and, 2. If there ever was a cause of action the petitioner ought not to be allowed to maintain it after having been a candidate at the special election. Whether these were good reasons for refusing leave to sue, and whether in any case the attorney-general may be compelled by mamdamus to grant leave to sue in the name of the state, were the questions really involved in the appeal, but they are not decided, because it is assumed that the attorney-general was not satisfied of the existence of facts which he has made the basis of his written decision, and its sole basis.