BEFORE ROY NOBLE LEE, DAN LEE and SULLIVAN
ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:
This case is a sequel to Andrews v. Waste Control, Inc., 409 So. 2d 707 (Miss. 1982), which included the same facts, for the purposes of this decision, and the same parties, viz, the Board of Supervisors, Justice Court Judges and Sheriff, Officers of Warren County, Mississippi. The Board of Supervisors was dismissed as party defendants and the complaint proceeded to trial against the other defendants.
Waste Control, Inc., whose president, operator and
majority owner is Herbert Downey, is engaged in the business of hauling waste from U. S. Rubber Company to a landfill located on property of Herbert Downey. The waste is transported by 18-wheeler Waste Control trucks with an average weight of 55,000 lbs. They are each equipped with five axles and make three round trips per day, utilizing a two-mile length of Halls Ferry Road. The landfill on Downey's property is the only one in the county which will accept waste from U. S. Rubber.
In Waste Control, Inc. #1, the Warren County Board of Supervisors enacted a resolution, which restricted maximum weight of vehicles travelling on Halls Ferry Road to 30,000 lbs. The chancellor found the resolution and ordinance arbitrary and unreasonable in that the Board of Supervisors failed to follow the statutory guidelines of Mississippi Code Annotated 65-7-45 (1972) as to both load limits and tire widths. The Board of Supervisors did not consider tire widths in passing the resolution and failed to comply with the statute. This Court affirmed the chancellor's action which enjoined the officers from enforcing that resolution.
Subsequent to Waste Control #1, the statutes were amended.
Miss. Code Ann. 65-7-43, as amended, has not been changed where pertinent and provides as follows:
The board of supervisors of any county pursuant to the maximum load limits established in Chapter 5, Title 63, Mississippi Code of 1972, and the posting authority granted in section 63-5-27(5) may declare what is or may be an unusual or uncommon load or weight to be conveyed on or over the roads, bridges or approaches of any bridges in the county; shall have power to protect their roads and bridges from any unusual or uncommon use where the same is likely to injure or impair their usefulness as public highways; and may recover damages for injuries.
Miss. Code Ann. 65-7-45, as amended, has been changed to delete the former language regarding regulation of the width of tires:
The board of supervisors of any county in this state may, at the discretion of such board, regulate the maximum load of any vehicle using the public roads and bridges of such county, or any section or length of any public road, or any
particular bridge in such county by order spread on its minutes, which order shall, before being in full force and effect, be first published in a newspaper published in the county for three (3) consecutive weeks, whereupon such resolution shall be in force and effect.
Appellants assign the following errors in the trial below:
I. THE LOWER COURT ERRED IN DISMISSING PLAINTIFF'S COMPLAINT AT THE CLOSE OF ITS CASE-IN-CHIEF.
II. THE LOWER COURT ERRED IN NOT FINDING THE RESOLUTION IN QUESTION ARBITRARY, ...