The opinion
WINTER and CRAVEN, Circuit Judges,
dissenting:
We dissent from the denial of rehearing en banc.
For the reasons expressed by Judge Butzner, the dissenting member of the panel which decided the case, we think the instant case is indistinguishable from Sullivan v. Little Hunting Park, Inc., 396 U.S. 299 , 90 S.Ct. 400 , 24 L.Ed. 2d 386 (1969), and plaintiffs are entitled to judgment on its authority.
Even if our reading of Little Hunting Park is erroneous, we deplore the majority’s arriving at the dubious holding that the Civil Rights Act of 1866 was impliedly repealed in part by the Civil Rights Act of 1964 when that question has been neither briefed nor argued. A holding of that importance and scope— and one apparently in conflict with decisions of other courts that have considered the question — should be reached if not by the court sitting en bane, then at least by the panel hearing the case, only after full adversary treatment by the parties.