Opinion
3 Div. 45, 45-A, 45-B.
December 22, 1971. Rehearing Denied January 12, 1972.
Appeal from the Circuit Court, Montgomery County, Richard P. Emmet, J.
M. R. Nachman, Jr., Montgomery, for appellants.
Nationwide, appellant, admittedly maintains no place of business in Alabama; has not qualified to do business in Alabama; and does not distribute catalogues or other advertising matter and by reason thereof receive and accept orders from residents within the State of Alabama. Because, in addition, as the trial court found, after a hearing described in Proposition II, Nationwide does not solicit and receive purchases or orders by agent or salesman within the State of Alabama, but simply acts as jobber and accepts and forwards to manufacturers orders placed by persons in Alabama, and does this exclusively by mail, the Alabama Use Tax Statute does not attempt to make a use tax collector out of Nationwide. The administrative attempt by the State Department of Revenue to do so violates the Alabama Use Tax Statute. Code of Alabama 1940, as amended Title 51, §§ 790 and 792; State v. Lane Bryant, 277 Ala. 385, 171 So.2d 91; State v. MacFadden-Bartell, 280 Ala. 386, 194 So.2d 543; National Bellas Hess, Inc. v. Dept. of Revenue of Illinois, 386 U.S. 753, 87 S.Ct. 1389, 18 L.Ed.2d 505; State v. West Point Wholesale Grocery Co., 284 Ala. 149, 223 So.2d 269; Family Discount Stamp Co. v. State, 274 Ala. 322, 148 So.2d 218. An essential element of a principal-agency relationship is the reserved right of the principal to control the activities of the agent. If there is no such rights of control, there cannot be an agency relationship. Tuscaloosa Veneer Co. v. Martin, 233 Ala. 567, 570, 172 So. 608; Ridgeway v. Sullivan-Long Hagerty, Inc., 39 Ala. App. 341, 98 So.2d 665, 667-668; 1 Restatement of Agency Second, § 14, Comment (a) P. 60. The degree of market penetration in Alabama is immaterial in determining whether a sufficient nexus or minimum business connection exists between an out-of-state vendor and the State of Alabama so as to permit the State of Alabama to make a use tax collector out of the out-of-state vendor consistent with due process and commerce clause guaranties of the Constitution of the United States. State v. Lane Bryant, 277 Ala. 385, 171 So.2d 91; National Bellas Hess, Inc. v. Dept. of Revenue Illinois, 386 U.S. 753, 87 S.Ct. 1389, 18 L.Ed.2d 505; State v. West Point Wholesale Grocery Co., 284 Ala. 149, 223 So.2d 269.
William J. Baxley, Atty. Gen., Willard W. Livingston, Counsel, Dept. of Revenue, and Asst. Atty. Gen., B. Frank Loeb, Asst. Counsel, Dept. of Revenue, and Asst. Atty. Gen., for appellee.
An existing final judgment, decree, or other final adjudication rendered upon the merits by a court of competent jurisdiction upon a matter within its jurisdiction is conclusive of the rights of the parties in all other actions in the same or any other tribunal of concurrent jurisdiction, on the points and matters in issue and adjudicated in the first suit. Ashurst v. Preferred Life Assurance Society of Montgomery, 282 Ala. 119, 209 So.2d 403; Alabama Power Co. v. Thompson, 250 Ala. 7, 32 So.2d 795, 9 A.L.R.2d 974; Elmore Quillian Co. v. Henderson-Mizell Mercantile Co., 179 Ala. 548, 60 So. 820; 46 Am.Jur.2d, Judgments, Sections 394-398, 50 C.J.S., Judgments, Sections 686-688. A determination of a question of law made by an appellate court in the course of an action becomes "the law of the case" and may not be disturbed at a later stage of the litigation. Thomason v. Dill, 34 Ala. 175; Zdanok v. Glidden Co., Durkee Famous Food Div., 327 F.2d 944 (C.A. 2, 1964); 46 Am.Jur.2d, Judgments, Sections 400-401; 5 Am.Jur.2d, Appeal and Error, Sections 744-747. A ruling of the Supreme Court of Alabama on a former appeal is binding upon the Court of Civil Appeals in a subsequent appeal where the record in the former appeal shows that the testimony is not essentially different from that offered in the second trial giving rise to the subsequent appeal and where neither issues nor the "theory" are changed in the second trial. Great Atlantic Pacific Tea Co. v. Crabtree, 27 Ala. App. 457, 173 So. 894; Coalite, Inc. v. Aldridge, 285 Ala. 137, 229 So.2d 539, On Remand 45 Ala. App. 721, 229 So.2d 541; Caffey v. Hammond, 45 Ala. App. 650, 235 So.2d 900; Rogers v. State, 44 Ala. App. 489, 214 So.2d 451.
This is an appeal from a final consolidated decree of the Circuit Court of Montgomery County, Alabama, ascertaining the amount of use tax owed by appellants to appellee under three assessments theretofore made by the State Department of Revenue against appellants.
From the assessments, which were made in 1969, appellants appealed to the Circuit Court of Montgomery County, in Equity, which said court in three final decrees dated June 11, 1969, set aside said assessments, whereupon the State appealed to this court. The issues raised on the first appeal to this court went to the jurisdictional, statutory, and constitutional validity of the assessments.
In an opinion released on January 5, 1970, we upheld the assessments and reversed the trial court. Rehearing was denied on January 20, 1970. The original opinion and the opinion denying rehearing are reported in 46 Ala.App., pages 210 and 221, 239 So.2d 780 and 791.
The Supreme Court granted certiorari! In a well reasoned and documented opinion written by Justice Bloodworth, the Supreme Court affirmed that part of the opinion of this court in which we held that the assessments were valid but remanded to us with directions to reverse and remand to the Circuit Court "solely for the purpose of determining and fixing the amount of taxes due." Ex parte Newbern, 286 Ala. 348, 358, 239 So.2d 792, 802.
As directed, we remanded to the Circuit Court with directions to determine the amount of the tax. From the decree determining and adjudging the amount of the, tax comes this, the second appeal, in these cases.
For a statement of the facts and our former conclusions of law we refer the reader to our opinion on the former appeal: as well as to the opinion of the Supreme Court hereinabove cited.
Appellants have assigned sixteen errors, the first fifteen of which are addressed in one form or another to the alleged error of the trial court in not disregarding the opinion and judgment of this court on the former appeal and of the Supreme Court on certiorari and rendering a decree again nullifying the assessments.
We are now forcefully and persuasively urged by eminent counsel for the appellants to abandon our former position by adjudging the assessments invalid and reversing the trial court for doing what it was directed by this court to do. We have carefully read the excellent briefs furnished us by counsel on both sides; have examined the transcript; and have reached the conclusion that nothing is presented that was not fully tried, considered, and decided on the first appeal, except the issue raised by Assignment of Error No. 16, which charges the court with error in failing to give appellants credit for use tax in the amount of $2,118.72 which was forwarded to appellants by sellers in Alabama and returned by appellants to these sellers, who failed to remit the same to the State Department of Revenue, but, instead, retained the same. We hold that there is no merit in any of the first fifteen assignments of error. We shall now discuss briefly Assignment of Error No. 16.
Since we and the Supreme Court held on the first appeal that the State was within its rights in requiring appellants to collect and remit use taxes on their sales in Alabama failing which they became liable to the State for same, it follows that the State had the option to assess these taxes against the purchasers of the merchandise or to proceed against appellants for failing to collect and remit. Appellants, having failed to collect and remit, the State elected to proceed against appellants. Since appellants were of the opinion that the State could not require them to collect and remit use taxes on merchandise sold in Alabama, we can see that they could not very well afford to remit to the State use taxes collected on only a part of their sales in Alabama. But obviously, returning the tax collected to the salesman who had collected it was not payment to the State. We are unable to see the difference in holding appellants liable for uncollected use taxes and holding them liable for taxes collected but not remitted; hence there is no merit in Assignment of Error No. 16.
The consolidated decree of the trial court is affirmed.
Affirmed.