Can a Mississippi county require a damage bond from out-of-county trucking companies but not from in-county ones?

Plain-English summary

Tallahatchie County wanted to make out-of-county trucking and timber operators post a bond for damage to county roads, but not require the same of in-county operators. The county attorney asked whether a residency-based bond requirement was lawful.

The AG said no. Mississippi counties have broad authority over their roads. Under § 63-5-51, a board of supervisors can require a special permit for any vehicle that exceeds posted size or weight limits, and can demand "such undertaking or other security as may be deemed necessary to compensate for any injury to any roadway or road structure." The amount and type of security is left to the board's discretion.

But that authority comes with a catch. Any size and weight regulation, and any bond tied to it, must be applied uniformly to every operator who exceeds the posted limit. The county cannot draw a line at the county boundary, and it cannot draw a line around a single industry. The opinion points back to a 2001 AG opinion (Thach) that found no authority to impose weight regulations only on a particular industry's vehicles.

The opinion also confirms that this answer is limited to county roads. State-maintained highways stay under state jurisdiction regardless of where they run.

What this means for you

If you sit on a county board of supervisors

You can adopt and enforce a permit-and-bond regime for oversize or overweight vehicles, but draft it as a rule about vehicles, not about people. Spell out the size, axle, and gross-weight thresholds in a resolution on your minutes. Publish the order in a county newspaper for three consecutive weeks before you start enforcing it (§ 65-7-45). When the rule is in force, every operator above the threshold gets the same permit application, the same engineering review, and the same bond formula. If your existing ordinance singles out trucks "domiciled outside the county" or "operated by hauling companies based out of state," strip that language out before someone challenges it.

If you operate a trucking, logging, or aggregate-hauling business

If a Mississippi county is asking you to post a damage bond and your local competitors are not, that is the kind of disparate treatment this opinion forbids. Ask the county attorney for a copy of the resolution and the order spread on the minutes. If the rule on its face applies only to out-of-county or out-of-state operators, this opinion gives you a basis to push back. If the rule on its face is uniform but is being enforced selectively, you have a different problem: document who else exceeds the posted limit without posting a bond.

If you are a county attorney drafting a road-protection ordinance

The Reynolds opinion gives you a structural template: tie the bond to the act (operating a vehicle above the posted size or weight on a county road) and to the issuance of a § 63-5-51 special permit. Don't tie it to the operator's residency, business address, or industry. Build the formula off engineering data on actual road damage at given axle loads, so the security amount can be defended as reasonable. Include in the file a record showing the rule applies to every applicant who triggers the permit threshold.

If you are an in-county operator already exceeding posted limits

Watch this carefully. If your county has been letting local operators run heavy without a permit while requiring out-of-county operators to post bond, this opinion points to two outcomes once a county fixes the issue: either the county drops the bond requirement altogether, or it starts requiring a permit and bond from you too. Plan for the second.

Common questions

Q: What gives a Mississippi county the authority to regulate trucks on its roads at all?
A: A combination of the state constitution and several statutes. Miss. Const. Art. 6 § 170 and Miss. Code Ann. §§ 19-3-41 and 65-7-1 give the board of supervisors "full jurisdiction" over county roads. § 65-7-43 lets the board declare what counts as an unusual or uncommon weight. § 63-5-27(5) lets the board impose more restrictive limits than the state minimums on county highways. § 63-5-51 lets the board issue special permits for vehicles exceeding the limits and require security to cover potential road damage.

Q: How does a county actually adopt a weight limit so it sticks?
A: § 65-7-45 sets the procedure. The board passes an order, spreads it on its minutes, and publishes the order in a county newspaper for three consecutive weeks. Only after the third week's publication is the order in force. Skipping the publication step is a common defect in challenges.

Q: Can a county target one industry for stricter rules, like logging trucks or gravel haulers?
A: No. The opinion cites Thach (2001) for the rule that the board has no authority to impose weight regulations on vehicles in a particular industry alone. The trigger has to be the vehicle's size or weight, not the cargo it carries or the company on the door.

Q: How much security can a county require?
A: The amount and type are within the board's discretion, per the 2010 Robinson opinion. Practically, the bond should bear some rational relationship to the realistic cost of repairing the road damage the permitted operation could cause. A bond that is large enough to function as an exclusion will draw a challenge.

Q: What about state highways running through the county?
A: This opinion does not apply to state-maintained highways, even when they cross county roads. The Satcher (2013) opinion is cited for that limit. Permits and bonds on state highways come from the state, not the county.

Q: Can the county require a bond from a vehicle that is within the legal limits?
A: The bond authority in § 63-5-51 attaches to special permits for vehicles "exceeding the maximum specified" or "otherwise not in conformity with" Chapter 5. A vehicle operating within the posted limits is not in special-permit territory and therefore not in bond territory either.

Background and statutory framework

Mississippi splits authority over public roads. The state runs state highways. Counties run county roads. § 19-3-41 and § 65-7-1 give the board of supervisors the lead role on the county side, and Article 6 § 170 of the state constitution backs that up.

Within that authority, the legislature has built a layered system for vehicle size and weight. § 63-5-1 through 63-5-51 set baseline statewide rules. § 63-5-27(5) lets a county tighten those rules on its own roads. § 65-7-43 lets a county post unusual or uncommon weight limits. § 65-7-45 prescribes how a board adopts and publishes those limits. § 63-5-51 then handles the exception case: an operator who needs to move something heavier than the posted limit can apply for a special permit, and the local authority can attach conditions, including security to cover road damage.

The uniform-application rule is not in the statute itself; it comes from earlier AG opinions reading the statutes against the equal-protection backdrop. Reynolds restates the rule and applies it to a residency-based classification.

Citations

• Miss. Const. Art. 6, § 170 (county jurisdiction over county roads)
• Miss. Code Ann. § 19-3-41 (general supervisory authority of boards of supervisors)
• Miss. Code Ann. § 65-7-1 (county road jurisdiction)
• Miss. Code Ann. §§ 63-5-1 et seq. (state size and weight limits)
• Miss. Code Ann. § 65-7-43 (county authority to declare unusual or uncommon loads)
• Miss. Code Ann. § 63-5-27(5) (county authority to impose more restrictive limits)
• Miss. Code Ann. § 65-7-45 (procedure for adopting weight limits)
• Miss. Code Ann. § 63-5-51(1)(a) (special permits for oversize or overweight vehicles)
• Miss. Code Ann. § 63-5-51(1)(c) (security for road damage)
• MS AG Op., Thach (Apr. 23, 2001) (no authority to regulate by industry alone)
• MS AG Op., Hemphill (Oct. 4, 2013) (special permits and security)
• MS AG Op., Jones (Jan. 7, 2011) (special permits and security)
• MS AG Op., Robinson (Oct. 15, 2010) (amount of security in board's discretion)
• MS AG Op., Satcher (Dec. 6, 2013) (state highways excluded)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2022/08/T.Reynolds-August-22-2022-Bond-for-Damage-to-County-Roads.pdf

Original opinion text

August 22, 2022
Thomas U. Reynolds, Esq.
Attorney, Tallahatchie County Board of Supervisors
Post Office Drawer 350
Charleston, Mississippi 38921
Re:

Bond for Damage to County Roads

Dear Mr. Reynolds:
The Office of the Attorney General has received your request for an official opinion.
Question Presented
Where the Tallahatchie County Board of Supervisors (the "Board") has determined that the
damage to county roads by excessive weights is occasioned by out-of-county persons, firms, or
entities, can the Board require bond of these persons, firms, or entities when such bond is not
required of county residents?
Brief Response
While the Board may require a permit and security for damage to highways under its jurisdiction
caused by excessive size or weight of a vehicle or load, such regulations must be applied uniformly
to all vehicles exceeding the established size and weight limits.
Applicable Law and Discussion
The board of supervisors has full jurisdiction over all matters relating to county roads. Miss. Const.
Art. 6, Section 170; Miss. Code Ann. §§ 19-3-41 and 65-7-1.
The board of supervisors of any county, pursuant to maximum load limits established in Sections
63-5-1, et seq., and Section 65-7-43's posting authority, may declare what is an unusual or
uncommon weight or load to be carried over roads and bridges. Miss. Code Ann. § 65-7-43.
Section 63-5-27, which establishes gross single or tandem axle weights of vehicles operating on
public roads provides in subsection (5) that "[t]he board of supervisors of any county . . . by
appropriate resolution, may impose limitations more restrictive than those permitted in this section
upon the county highways of such county . . . ." It is within the discretion of the board of
supervisors to regulate the maximum load of any vehicle using public roads and bridges in the
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." Miss. Code Ann. § 65-7-45. However, any such
limitation on size and weight must be applied uniformly to all vehicles exceeding such limitations.
MS AG Op., Thach at 2 (Apr. 23, 2001) (finding no authority to impose weight regulations solely
upon vehicles in a particular industry).
Additionally, Section 63-5-51(1)(a) states that with respect to highways under their jurisdiction,
local authorities have the discretion to issue special permits, upon written application and for good
cause shown, "authorizing the applicant to operate or move a vehicle or combination of vehicles
of a size or weight of vehicle or load exceeding the maximum specified in this chapter or otherwise
not in conformity with the provisions of this chapter upon any highway under the jurisdiction of
the party granting such permit and for the maintenance of which said party is responsible."
Moreover, the local authority "may require such undertaking or other security as may be deemed
necessary to compensate for any injury to any roadway or road structure." Miss. Code Ann. § 63-5-51(1)(c).
Therefore, the Board "is authorized, in accordance with Miss. Code Ann. Section 63-5-51, to
require the issuance of special permits for the temporary operation of vehicles which exceed the
legal size and weight limitations and, under such circumstances, to require the posting of security
necessary to compensate for any injury to county roads." MS AG Op., Hemphill at 2 (Oct. 4,
2013) (citing MS AG Op., Jones at 2 (Jan. 7, 2011)). The type and amount of security required,
however, is left to the discretion of the Board. MS AG Op., Robinson at 1 (Oct. 15, 2010). Any
size and weight restrictions and corresponding security must be applied to the operators of all
vehicles. Thach at 2 (Apr. 23, 2001). This opinion does not apply to state-maintained highways
regardless of their location. MS AG Op., Satcher at 2 (Dec. 6, 2013).
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By:

/s/ Misty Monroe
Misty Monroe
Assistant Attorney General