ON PETITION FOR REHEARING
Before WEICK and McCREE, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge.
ORDER
This cause is before the Court upon the motion of Plaintiff-Appellant for rehearing, with suggestion for rehearing in banc; and Appellees having filed a brief responsive to said motion, as ordered by this Court; upon request for a vote to be taken, a majority of the active judges of this Court voted against such rehearing in banc. Therefore,
It is ordered that rehearing in banc be, and the same is, hereby denied. Circuit Judge EDWARDS and Circuit Judge McCREE dissent.
Such motion for rehearing in bane having been denied, the matter of rehear*901ing has been considered and will be disposed of by the panel that originally heard the appeal. Therefore,
It is ordered that the petition of Plaintiff-Appellant for rehearing be, and the same is, hereby denied. Circuit Judge MeCREE dissents.
Entered by order of the Court.
WEICK, Circuit Judge, and O’SULLIVAN, Senior Circuit Judge.
Judge Edwards’ dissent from denial of an in banc rehearing, with concurrence of Judge McCree, suggests the propriety of this supplement to the original majority opinion.
The dissent asserts:
“Unless the Supreme Court grants certiorari, this case will represent a final adjudication that the play ‘Hair’ is obscene and subject to being banned under state obscenity laws in Michigan, Ohio, Kentucky and Tennessee # * *»
We respectfully disagree. The procedural setting of this litigation makes clear the invalidity of such observation, as well as the inapplicability of the authorities cited in the dissent.
This case involved an action in equity. Plaintiff sought the aid of equity for a declaratory judgment and a mandatory injunction to require the Board of Directors of the Chattanooga Memorial Auditorium to allow exhibition therein of the play HAIR. The complaint relied on 28 U.S.C. §§ 2201 and 2202, which empower courts of equity to enter declaratory judgments. The complaint also averred deprivation of civil rights, but nowhere does the plaintiff assert a civil right to put on its show wherever it chooses. The following general principles apply to the granting or withholding of the relief sought by appellant.
“Injunction is distinctly an equitable remedy, the power to grant which stands forth as a distinct head of equitable jurisprudence and the principal and most important of its issued processes.” 42 Am.Jur.2d. Injunctions § 2, at 727-728 (1969). (Emphasis supplied.)
Application for such equitable relief invokes the Court’s discretion.
“Injunctive relief, whether prohibitory or mandatory, is granted or withheld in the exercise of sound judicial discretion * * * 42 Am.Jur.2d. Injunctions § 20, at 751 (1969).
Applications for a declaratory judgment are likewise addressed to equity’s discretion. In Eccles v. Peoples Bank, 333 U.S. 426, 431, 68 S.Ct. 641, 644, 92 L.Ed. 784 (1948), the Supreme Court said:
“A declaratory judgment, like other forms of equitable relief, should be granted only as a matter of judicial discretion, exercised in the public interest.” (Emphasis supplied.)
In Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967) the Court said:
“The injunctive and declaratory judgment remedies are discretionary, * * *."
The history and purpose of the creation of Soldiers & Sailors Memorial Auditorium by the people of Chattanooga are set out in a booklet which was received in evidence at trial. Its preface recites :
“The dedication of the Soldiers and Sailors Memorial Auditorium marks, as permanently as the work of finite hands may mark, the grateful appreciation in which Chattanooga holds her sons who offered their lives to the Nation’s service in the great World War [World War I],
“We erect for posterity, in commemoration of their patriotism, a hall in which mementoes, of their achievement may rest; an auditorium in which great bodies of our people may assemble for civic service; for the cultivation of the arts; for the promotion of a higher and a broader citizenship. It is fitting and well that our tribute should take this form.” (Emphasis supplied.)
*902The booklet, “Souvenir of Dedication” under a heading, “Its Operation and Management” sets out:
“It is the hope and ambition of the Board of Directors of the Soldiers and Sailors Memorial Auditorium to conduct the operation of the building in such manner as to render the greatest possible service to all the people of Chattanooga, Hamilton County and this section of the South.
“It will be their endeavor to make it the community center of Chattanooga, where civic, educational, religious, patriotic and charitable organizations and associations may have a common meeting place to discuss and further the upbuilding and general welfare of the city and surrounding territory.
“It will not be operated for profit, and no effort to obtain financial returns above the actual operating expenses will be permitted. Instead its purpose will be devoted for cultured advancement, and for clean, healthful,, entertainment which will make for the up-building of a better citizenship.” (Emphasis supplied.)
The booklet’s picture of the auditorium shows it to be a beautiful and commodious public building. The plaintiff-appellant, a New York Corporation— booking agent for the play HAIR— first sought to use a theatre, the Tivoli, a one-time commercial theatre which had been acquired by the City. Desiring, however, the larger capacity of the auditorium, the plaintiff sought equity’s aid to force opportunity to use it. A witness for plaintiff testified that a one-night production of their play in the auditorium would have made a profit in excess of $10,000. Having in mind the purposes for which the people of Chattanooga created their Soldiers & Sailors Memorial Auditorium, a court of equity cannot be faulted for withholding its writ whereby to command the Directors of the Auditorium to allow exhibition therein of a production containing the language and conduct set out in the District Judge’s opinion.
We are not persuaded that the great principles which control employment of equitable remedies must stand aside when the courts are dealing with the ever-widening contests requiring resolution of what is and what is not obscenity. We had thought that Judge Weick’s concurring opinion succinctly exposed the validity of this conclusion. We are constrained, however, by the current dissent to make these more extensive observations.
It is true that the District Judge did make a finding that the play HAIR is obscene and a violation of the ordinances of the City of Chattanooga and the statutes of Tennessee. In the original opinion of Judge O’Sullivan such a finding was approved. We believe, however, that it. was not improper for the District Judge to consider whether the play was obscene before determining whether or not to order the Directors of the Auditorium to allow its exhibition in Chattanooga.
While we do not claim that its facts make our opinion in Associated Students of Western Kentucky University v. Downing, 475 F.2d 1132 (6th Cir. 1973) a totally controlling precedent, we cite it as being consonant with what we say here. There, the governing officials of the named University cancelled a booking contract which it had previously made for the showing of a moving picture film described in the opinion. As here, plaintiffs sought a declaratory judgment and injunctive relief whereby to forbid the governing officials of Western Kentucky University from prohibiting exhibition of the film sponsored by plaintiffs — Associated Students of Western Kentucky University. In affirming refusal of the governing Board of the University to allow exhibition of the film, we said:
“In the present case the University did nothing more than to make a determination that, with respect to a particular experimental film, it would be ‘inappropriate for the University to continue as a contracting party.’ ” 475 F.2d at 1134.
*903We have considered the recent decisions of the Supreme Court in Miller v. California, - U.S.--, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and Paris Adult Theatre v. Slaton, District Attorney,U.S. -, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973), and consider that our decision and that of the District Court in the case before us are not inconsistent therewith.