The opinion
ON REHEARING
PER CURIAM:
In his original brief, appellee cited some twenty-five decisions. We thought we discussed all that were “on target” — that is, all that had to do with the efforts of a state to assess and collect use tax from nonresidents doing business in the state either solely by mail order or by agents or salesmen — but since distinguished counsel for appellee is obviously so unhappy with what we wrote, we are extending our opinion to meet some, if not all, of his plaints on application for rehearing.
We disagree with learned and distinguished counsel for appellee in his assertion that “this Court, in its initial effort, has now swept aside controlling state and federal precedents consistently applied by the Supreme Court of Alabama and by the court below (to which almost all tax appeals initially go) ; has unmade the law which had been so carefully developed by the legislature and the courts; and has made some new law of its own.”; and “Moreover, in the process, this Court has thrown aside settled concepts of appellate review — ‘our most quoted rules’. — • established principles which have existed as long as appellate courts have existed in this state.”
On the contrary we find no fault with any of the pronouncements, that have come to oúr attention, of the Alabama Supreme Court on the subject of assessing use taxes against nonresidents, and we do not think our holding in this case is in conflict with any of the opinions of the Supreme *222 Court on the subject. Evidently they have not been confronted with a case as factually on all-fours with the Scripto case, supra, as is this one.
Appellee says that we did not even mention the State v. West Point Wholesale Grocery Company case, Ala., 223 So.2d 269 , upon which it heavily relied. That case was based upon the assessment by the state of a franchise tax, a permit tax, and an admission tax against the West Point company, a Georgia corporation, with headquarters in Georgia, whose business was wholesaling groceries, hardware, paper products and other items. A large part of their volume consisted of sales made to retailers in Alabama by six salesmen, and the West Point company sent its trucks into Alabama to deliver the merchandise. The Supreme Court sustained the trial court in holding that the assessment was invalid, but Justice Harwood who wrote the opinion took pains to point out that the case was not governed by the law of the use tax cases.
Also, the appellee takes us to task for having reversed the trial court on its finding of facts. If we did not say it before, we say now that we think the trial court was plainly and palpably wrong in its finding of facts and in its conclusions of law as applied to the facts.
The first sentence of appellee’s brief reads: “This Court’s opinion of January 5, 1970 represents its maiden effort in the field of state sales and use taxation.” We make the observation that the appellee carried us to the woodshed so effectively that we fear that we have now lost our “maidenly status.”
We adhere to our original conclusions. Opinion extended. Application for rehearing overruled.
After remandment in 3rd Div. 8
Whereas, the Supreme Court of Alabama, did, on the 10th day of July, 1970, on a writ of certiorari to this Court, affirm the judgment of this Court, wherein the decree of the Circuit Court of Montgomery County, in Equity, was reversed and annulled; and the cause was remanded to this Court with directions to reverse and remand the cause to the Circuit Court of Montgomery County, Alabama, in Equity, solely for the purpose of determining the amount of taxes due.
It is therefore ordered, adjudged and decreed, in accordance with the judgment of the Supreme Court of Alabama, that the cause be and the same is hereby remanded to the Circuit Court of Montgomery County, Alabama, in Equity, for the sole purpose of determining and fixing the amount of taxes due and with directions to determine and fix the amount of taxes due.
It is further ordered and adjudged that John W. Newbern, d/b/a Nationwide Advertising Specialty Co., the appellee in this Court, pay all costs of appeal in this Court and in the Court below, for which costs let execution issue. *
Similar orders were entered in 3 Div. 8 -A and 3 Div. 8 -B.