Hitchcock v. City of Killeen
Decision Date | 16 June 1977 |
Docket Number | No. 5040,5040 |
Citation | 553 S.W.2d 22 |
Parties | Suk Chu HITCHCOCK et al., Appellants, v. CITY OF KILLEEN, Appellee. |
Court | Texas Court of Appeals |
Terral R. Smith, Austin, for appellants.
J. Rush Milam III, City Atty., Killeen, for appellee.
This is an appeal from an order granting a temporary injunction. Defendants, Suk Chu Hitchcock, Michael Allan Burke, Individually and d/b/a the Playhouse, and the Game Room, Inc., were enjoined from presenting or showing or allowing to be presented or shown any form of entertainment at 211 East Avenue D, Killeen, Bell County, Texas, without first obtaining the proper zoning or permit for the property described above.
The court found that defendants operated a "theater" at 211 East Avenue D in Killeen; the property was zoned for B-5 General Business uses; a theater is allowed only in BT-1 Districts; defendants also failed to comply with the "Shows Licensing Ordinance"; and, defendants will in reasonable probability continue to violate these ordinances unless restrained.
Defendants argue that zoning ordinance BT-1 is void because the City of Killeen failed to provide proper public notice of the zoning ordinance prior to its adoption as required by Article 1011d, Tex.Rev.Civ.Stat. 1 The City of Killeen contends defendants are bound by the judgment in Cause No. 62,433-C, City of Killeen v. J. Norman Wells, 146th District Court, Bell County, Texas, affirmed in Wells v. City of Killeen, 524 S.W.2d 735 (Tex.Civ.App., Beaumont 1975, writ ref. n.r.e.), which held the zoning ordinance under attack valid.
The property in the instant case, 211 East Avenue D, was the identical property involved in Wells. The same issues are involved in the instant suit as were involved in Wells. Only the named defendants are different. The defendants in Wells contended the zoning ordinance was void because of improper public notice. The defendants in the case at bar assert the same contentions.
The court in Texas Foundries v. International Moulders & Foundry Workers' Union, 151 Tex. 239, 248 S.W.2d 460 (1952) stated:
In Sun Oil Company v. Whitaker, 424 S.W.2d 216 (Tex.Civ.App.1968), the court said:
The issue before the court in Wells was the validity of Zoning Ordinance BT-1. The determination of this issue was of "general and public interest." In Cochran County v. Boyd, 26 S.W.2d 364 (Tex.Civ.App., Amarillo 1930, writ ref.), the court announced the appropriate rule as follows:
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Superior Oil Co. v. City of Port Arthur, 82-2396
...matter affecting the public interest binds all citizens and taxpayers even though they were not made parties to the suit. Hitchcock v. City of Killeen, 553 S.W.2d 22 (Tex.Civ.App.--Eastland 1977, no writ); Cochran County v. Boyd, 26 S.W.2d 364 (Tex.Civ.App.--Amarillo 1930, writ ref'd). The ......