Utah Plumbing & Heating Contractors Ass'n v. Board of Education of Weber County School District

CALLISTER, Justice

(dissenting) :

I am in complete agreement with the main opinion’s analysis of the facts and application of the law. However, I am compelled to dissent because the main opinion is nothing but a gratuity — the issues discussed and decided therein are moot. This, for the reason that the plaintiffs are not real parties in interest and have no standing to initiate or maintain this action.1

The four plaintiffs are voluntary trade associations, conducting their business as nonprofit corporations. As such, they have the right to sue or be sued.2 But, they do not have the right to maintain or initiate this action for themselves or for their members.

To begin with, plaintiffs have no direct interest in the School Board’s action of which they complain, or in the outcome of this litigation. They are not contractors and could not have participated had the Board submitted the sprinkling system job to bid. Plaintiffs’ standing must be determined solely by their interests and not those of their individual members.3 They must show, which they cannot, that the position asserted is one to enforce an obliga*209tion to themselves, but not one to enforce the separate property rights of their individual members.4

Nor can plaintiffs qualify as a representative 5 in a taxpayer’s class action. The plaintiffs are not domiciled nor do they own any real property in Weber County and, therefore, do not pay taxes to the County or the School District.6 They are not on the tax rolls of Weber County. Obviously, the plaintiffs pay a state sales tax upon items which they purchase or services which they require. It was upon the basis of plaintiffs’ payment of sales tax that the lower court concluded that they had standing to bring this suit to the courts.

The revenue from the state sales tax goes into the general fund. From there it is appropriated, along with revenue from other sources, by the legislature to various state departments or functions. One of these is the uniform school fund, from which the defendant receives a certain allocated amount which is determined by a statutory formula. Also, the legislature has directed sums from the general fund to aid local school districts in building new schools and in capital improvements — again, according to a statutory formula.

Thus, it must be conceded that the interest of plaintiffs in the action of the School Board is extremely remote — especially from a pecuniary standpoint. Plaintiffs have not alleged, nor have they proved any pecuniary loss. This is a fatal defect to' their standing as a real party in interest.7

Their interest, if any, is infinitesimal and de minimus.

Finally, this court has stated:8

* * * For a court of equity to grant relief when the injury threatened is more theoretical and imaginary than real and substantial, as it appears in this case, * * * would be an unauthorized use, if not an abuse, of power.

For the foregoing reasons, the appeal should be dismissed.

. This'-detect was presented to the lower court and has been made a point on appeal.

. 16-0-22(2), U.C.A.1953 (supp:).

. Windsor Hills Imp. Assn., Inc. v. Mayor and Council of Baltimore, 195 Md. 383, 73 A.2d 531 (1950).

. South Carolina Council of Milk Producers, Inc. v. Newton, 241 F.Supp. 259 (E.D., S.C., 1965); Alabama Independent Service Station Assn. v. Shell, 28 F.Supp. 386 (D.C., N.D.Ala., 1939); Utah Citizens Rate Assn. v. United States, 192 F.Supp. 12 (D.C.Utah, 1961).

. Rule 23(a) U.R.C.P.

. Some members of plaintiff associations are probably Weber County taxpayers, but they did not bring this suit.

. Lyon v. Bateman, 119 Utah 434, 228 P.2d 818 (1951).

. Tanner v. Nelson, 25 Utah 226, 239, 70 P. 984, 989 (1902).