(dissenting to the denial of a rehearing en banc):
In my opinion, the case should be reheard en banc.
I
Assuming the facts stated in the petition for rehearing are correct, that is to say, there was pending civil and criminal litigation in the Virginia courts concerning the validity of the ordinances in question here at the time of the filing of these suits, then rehearing en banc ought to be granted to maintain uniformity of our decisions, Lynch v. Snepp, 472 F.2d 769 (4th Cir. 1973), as well as to decide a question of exceptional importance in the maintenance of relations between State and federal courts. Stefanelli v. Minard, 342 U.S. 117, 123, 72 S.Ct. 118, 96 L.Ed. 138 (1951), states the problem in another factual setting.
II
Taking the facts stated in the opinion as correct, that is to say, there is no pending litigation in the Virginia courts concerning the validity of the statutes involved here, I note that the question decided here was considered, with different result, in Becker v. Thompson, 459 F.2d 919 (5th Cir. 1972), and en banc, 463 F.2d 1338 (5th Cir. 1972). Cf. Jones v. Wade, 479 F.2d 1176 (5th Cir. 1973). The Supreme Court has granted certiorari in Becker, sub nom., Steffel v. Thompson, 410 U.S. 953, 93 S. Ct. 1424, 36 L.Ed.2d 686, 1973, and it would not seem to be unseemly to hold this decision and await the judgment of that court so long as the precise question as stated in the opinion of the panel is pending there for consideration. We have done so recently. Gullage v. State of South Carolina, 480 F.2d 1219 (4th Cir. 1973). Any conflicts between the judges in the Eastern District of Virginia could as easily be resolved for the moment by staying the action of the district court at Richmond, as otherwise.
I also feel the question raised is one of exceptional importance, the problem being accurately stated in Stefanelli as it may concern State and federal relations, and in Spielman, infra, as it may concern the jurisdiction of the court.
In addition, I do not read Lynch and Lake Carriers as requiring the result reached by the panel, and believe the panel decision is not consistent with Tyrone, infra.
I conceive the result reached by the panel ought to be considered in the light of In re Sawyer, 124 U.S. 200, esp. p. 209-221, 8 S.Ct. 482, 31 L.Ed. 402 (1887); Spielman Motor Sales Co. v. Dodge, 295 U.S. 89, 55 S.Ct. 678, 79 L. Ed. 1322 (1935), and Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 (1943). Indeed, the very jurisdiction of the district court may be subject to doubt on the ground that the complaint did not state a case within its equitable jurisdiction. Spielman, 295 U.S. at 97, 55 S.Ct. 678. Bad faith enforcement of the ordinance involved has neither been alleged nor proved. Cf. Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971). See also the concurring opinion of the Chief Justice in Mitchum v. Foster, 407 U.S. 225, 92 S. Ct. 2151, 32 L.Ed.2d 705 (1972).
Since I am of opinion that the rights of these plaintiffs do not rise to greater dignity than First Amendment rights, the holding here would seem to be in conflict with out recent decision in Tyrone v. Wilkinson, 410 F.2d 639, esp. p. 642 (4th Cir. 1969).