(concurring) :
I concur with the Chief Justice, but in doing so I would not have this case to be considered as any authority for the proposition that the plaintiffs have standing to maintain this action.
The case was initiated originally to restrain the defendant from constructing a sprinkling system for a football field. This work has now been completed, and so this appeal presents to us a moot question.
At trial the defendant made two contentions by way of defense in this matter, namely:
*208(1) The plaintiffs were not taxpayers and, therefore, had no standing to bring this suit.
' (2) Section 53-11-1, U.C.A.1953, did not prevent the School Board from installing the sprinkling system.
The trial court ruled that plaintiffs were taxpayers and did have standing to maintain the action but held that the statute quoted did not prevent the defendant from doing the work of installing the sprinkling system.
Although counsel for the defendant refused to specifically waive his contention of lack of standing on the part of plaintiffs, nevertheless at oral argument he requested us to rule upon the merits of the case, and in doing so I think he in effect did waive that contention.
The trial court had jurisdiction of the parties and the subject matter involved herein. There is nothing jurisdictional about this matter; and if defendant in effect waived its contention regarding the standing of the plaintiffs, the findings of the trial court in that regard would be binding upon us, and we should rule upon the merits of this case so as to lay down guidelines to be followed in the future when situations similar 'to this 'confront school boards.
I would, therefore, affirm the judgment of the trial court.