Andrews v. Waste Control, Inc.

• Decision Date: 03 February 1982
• Docket Number: No. 53225,53225
• Citation: 409 So.2d 707
• Parties: James ANDREWS, Z. B. Fry, Tommy Akers, Carl Kelly and John Ferguson, Supervisors of Warren County, Mississippi, Paul Barrett, Sheriff, Otto Brannan, Justice of the Peace District # 5 v. WASTE CONTROL, INC.
• Court: Mississippi Supreme Court

Page 707

409 So.2d 707

James ANDREWS, Z. B. Fry, Tommy Akers, Carl Kelly and John Ferguson, Supervisors of Warren County Mississippi, Paul Barrett, Sheriff, Otto Brannan, Justice of the Peace District # 5 v. WASTE CONTROL, INC.

No. 53225.

Supreme Court of Mississippi.

Feb. 3, 1982.

Ellis, Braddock & Bost, Gerald E. Braddock, Vicksburg, for appellants.

Varner & Parker, R. E. Parker, Jr., David M. Sessums, Vicksburg, for appellee.

Before PATTERSON, C. J., and BROOM and DAN M. LEE, JJ.

DAN M. LEE, Justice, for the Court:

This is an appeal from the Chancery Court of Warren County wherein the Warren County Board of Supervisors, Paul Barrett, the Sheriff of Warren County, and Otto Brannan, respondents/appellants, were enjoined from enforcing a resolution passed on September 7, 1976, which restricted maximum weight of vehicles traveling on Halls Ferry Road, Warren County, Mississippi, to 30,000 pounds. 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 section 65-7-45 (1972) as to both load limits and tire widths. Aggrieved of these findings, appellants prosecuted this appeal with supersedeas and assign the following errors:

1. The lower court erred in overruling appellants' demurrers.

2. The lower court erred in overruling appellants' motion at the conclusion of appellee's case to exclude the evidence of appellee and dismiss appellee's bill and enter judgment for appellants.

3. The decree of the lower court ordering the issuance of a prohibitory injunction was contrary to the law and evidence and the decree of the lower court was an abuse of discretion and manifest error.

4. The lower court erred in refusing to sustain appellants' pleas in bar.

5. The lower court erred in finding the ordinance of the Board of Supervisors of Warren County, Mississippi, was enacted without authority of law, and in decreeing that a prohibitory injunction issue.

Waste Control, Inc. (appellee) is in the business of hauling and disposing of waste products from various commercial and industrial establishments in Warren County. Since 1975 Waste has been hauling refuse for U. S. Rubber and depositing it on the private property owned by Herbert A. Downey, who is also the president of Waste Control, Inc., which property is located at the south end of Halls Ferry Road. The refuse is transported in an 18-wheeled vehicle weighing approximately 30,000 pounds empty and 57,000 pounds fully loaded.

On September 7, 1976, the board adopted a resolution imposing a 30,000-pound weight limit to prevent damage and protect Halls Ferry Road. Although Jimmy Andrews, a member of the board of supervisors and one of the appellants here, did not personally know whether any tests were conducted, he asserted that the weight restriction was based on recommendation from an engineer. Andrews could not relate a similar road to Halls Ferry with 30,000-pound weight limit and admitted it was the only road in the county with a 30,000-pound limit except for 20,000-pound limits over certain bridges in the county.

Waste received citations for exceeding the weight limit on Halls Ferry Road on September 22, 1976, January 11, 1981, and January 21, 1981. Witnesses asserted that others traversed Halls Ferry Road frequently exceeding the weight restriction and without receiving citations. In any event, Waste has continued to use the road without regard to the 30,000-pound weight limit in hauling refuse from the plant operated by U. S. Rubber.

At the conclusion of the hearing, the chancellor found the weight restriction arbitrary and unreasonable in that the board failed to follow the statutory guidelines of Mississippi Code Annotated section 65-7-45 (1972) and "further, that the resolution in question deals with the singular issue of weight limits, whereas Section 65-7-51 specifies that the authority delegated by the legislature to the prospective boards of supervisors deals with, not the singular power to limit weights, but the combination of tire widths and weights, and the regulation in question therefore, does not come within the purported authority granted by the legislature in that it tends to limit maximum weights only."

The first assignment of error is that the court erred in overruling appellants' demurrers. There were seven demurrers filed, one for each of the members of the board of supervisors and one for the sheriff and the justice court judge. These demurrers were identical as to their grounds, as follows: "Petitioner's petition for injunction states no cause of action against the respondent and there is no equity on the face of the petition, and the petition for injunction of petitioner, Waste Control, Inc., should be dismissed with prejudice at the cost of the petitioner, Waste Control, Inc." The learned chancellor overruled these demurrers and this Court is unable to find error thereasto because the rule is that all things pled in the petition must be taken as true and the sole question is, does the petition allege a cause of action? We cannot say that the petition, if taken as true, did not allege a cause of action. Ward v. Merchants & Farmers Bank, 394 So.2d 1374 (Miss.1981); Downs v. Corder, 377 So.2d 603 (Miss.1979); Ervin v. United States Fidelity & Guaranty, 365 So.2d 1208 (Miss.1978); and Robinson v. Martel Enterprises, Inc., 337 So.2d 698 (Miss.1976).

Perhaps it would be more concise for this Court to consider assignments of error No. 1 and No. 4 together because they raise jurisdictional questions. No. 1 states that there is no equity on the face of the petition, and Assignment No. 4 says, the court erred in refusing to sustain appellants' pleas in bar. The first plea in bar was that the chancery court had no jurisdiction. The very able brief of appellants presents the question of jurisdiction of the chancery court in actions which should be confined to the law courts, particularly the criminal courts. The question of jurisdiction of the chancery court to enjoin the board of supervisors from enforcing what is contended to be an invalid ordinance or resolution of the board, and further to enjoin the sheriff and the justice court judge from issuing citations and imposing a criminal penalty, is very well argued in appellants' brief. Jurisdiction, being a threshold question, will be disposed of first.

The jurisdiction of the chancery court to enjoin the prosecution of criminal law violations is not to be favored and generally the chancery court, a court of equity, should be encouraged to refrain from exercising jurisdiction in such cases. The appellee was given three tickets in violation of the ordinance limiting the weight to 30,000 pounds, one in 1976 and two in 1981. The question here is whether the weight limitation diminishes or deprives appellee of the use of a public road and effectively denies appellee the full use, benefit and enjoyment of his privately-owned real estate used to dump refuse from U. S. Rubber Company under a contractual agreement so as to bring this case within those holding the chancery court has jurisdiction.

It is contended by the appellants that the facts in this case are so similar to those in Pleasants v. Smith, 90 Miss. 440, 43 So. 475 (1907), that it is on all fours with the case at bar. Pleasants dealt with the use of a megaphone on the streets of Clarksdale calling attention to the wares of a merchant wherein it was contended that the loud and unusual noises were in violation of the ordinance of Clarksdale prohibiting a willful disturbance of the peace and quiet of said town. This Court affirmed the chancellor, who denied the injunction on jurisdictional grounds, in an opinion by Chief Justice Whitfield, as follows:

The chancery court had no jurisdiction whatever in this cause. There are no property rights involved, in any proper sense of the word "property." The constitutionality of the ordinance, if it is assailed, can be determined in the law court. Whether, if constitutional, the appellant is guilty or not, is a question exclusively of criminal jurisdiction, with which equity has nothing to do. The case is wholly unlike Quintini v. Board of Mayor and Marshal of Bay St. Louis, 64 Miss. 483, 1 South., 625, 60 Am.Rep., 62 for there property rights in real estate were directly involved. The case falls squarely within the case of Crighton v. Dahmer, 70 Miss. 602, 13 South., 237, reported in 35 Am.St.Rep., 666, with notes. And see, same case and notes, 21 L.R.A., 84. The general principle insisted upon by the learned counsel for the appellant may be conceded-the principle announced in the case of Quintini v. Bay St. Louis, supra; but in no possible legal view can the appellant be said to have involved here any proper (sic) rights, or to be subjected to any irreparable damage.

(90 Miss. at 449-50, 43 So. at 476)

In Crighton v. Dahmer, 70 Miss. 602, 13 So. 237 (1893), this Court stated:

There are many cases to be found, proceeding upon an obvious and clear distinction, in which courts of equity have enjoined acts affecting property rights, notwithstanding the fact that such acts might also be ground for indictment. To this class are to be assigned the cases of Emperor of Austria v. Day, 3 DeGex, F. & J., 217; Spinning Co. v. Riley, L.R., 6 Eq., 551. In the latter case the chancellor said: "The truth, I apprehend, is that the court will interfere to prevent acts amounting to crime, if they do not stop at crime, but also go to the destruction or deterioration of the value of property."...

(70 Miss. at 607, 13 So. at 238)

Concluding in Crighton, supra, this Court stated in affirming the chancellor:

There are a few cases in which the enforcement of void municipal ordinances, the execution of which directly affected property rights, have been enjoined, and criminal prosecutions before the municipal authorities restrained. City of Atlanta v. Gate City Gas-light Co., 71 Ga.,...