(concurring specially):
I agree fully with the conclusion that there is no rational nexus between Alabama and the parties or the injury, and that Alabama is not a constitutionally permissible forum for this litigation. However, since this holding is an answer to the constitutional problem which we call the third question, I think that the Court should first conclude that an affirmative answer is required to the question of statutory construction which we call the first question.
Whenever a plaintiff attempts to subject a defendant to personal jurisdiction *349through the use of a long-arm statute, two basic questions are raised. First, did the State intend that under the present circumstances substitute service of process could be invoked in order to subject the defendant to personal jurisdiction? Second, does the Constitution of the United States permit substitute or extraterritorial service of process under the present circumstance?1
Does the mailing of 69,552 copies per issue of Post into Alabama and the occasional visits within the State of Post’s advertising solicitors constitute doing “any business” under the Alabama statute? The defendant cites cases like Buckley v. New York Times Company, 5 Cir. 1964, 338 F.2d 470, arguing that it was not doing “any business” as that term is employed in the Alabama long-arm statute. The Buckley case and its predecessors are not dispositive of the issue before us. Buckley involved a Louisiana statute, not the broad Alabama statute. It interpreted that statute and its constitutionally permissible limits by reference to two federal cases— Street & Smith Publications v. Spikes, 5 Cir. 1941, 120 F.2d 895, cert. den., 314 U.S. 653, 62 S.Ct. 102, 86 L.Ed. 524, and Insull v. New York World-Telegram Corp., 7 Cir. 1959, 273 F.2d 166.
The Street case is a Texas case that preceded the present liberalization of the use of long-arm statutes and may very well no longer be good law even in Texas. Cf. Atwood Hatcheries v. Heisdorf & Nelson Farms, 5 Cir. 1966, 357 F.2d 847. The Insull case is an Illinois case. Much water has flowed under the bridge since it was written and it also may no longer be good law. See Currie, The Growth of the Long Arm: Eight Years of Extended Jurisdiction in Illinois, 1963 U.Ill.L.F. 533.
Underlying the conclusions of the Seventh Circuit in Insull was the fact that Illinois law views the tort of libel as complete at the time of first publication. Thus the entry of the defamatory article into Illinois did not constitute a new tort but was “only relevant in computing damages.” Alabama takes an entirely different view. While Alabama agrees with Illinois law that every publication of a libel is relevant in computing damages, Alabama is a republication State, viewing the entry of the libelous material as giving rise to a new cause of action.
The Supreme Court of Alabama has authoritatively held that under circumstances analogous to those found in the instant case there is sufficient activity to constitute doing any business under the Alabama statute. New York Times Co. v. Sullivan, 1962, 273 Ala. 656, 144 So.2d 25, rev’d on other ground, 1964, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. In the New York Times ease the Alabama Supreme Court held as follows (144 So.2d at 33-34) :
“Justice demands that Alabama be permitted to protect its citizens from tortious libels, the effect of such libels certainly occurring to a substantial degree in this State.
* * * * *
“As to appellant’s second contention that the cause did not accrue from any acts of The Times in Alabama, it is our conclusion that this contention is without merit.
“Equally applicable to newspaper publishing are the observations made in Consolidated Cosmetics v. D-A Pub. Co., Inc., et al., 7 Cir., 186 F.2d 906 at 908, relative to the functions of a magazine publishing company:
“ ‘The functions of a magazine publishing company, obviously, include gathering material to be printed, obtaining advertisers and subscribers, printing, selling and delivering the magazines for sale. Each of these, we think, constitutes an essential factor of the magazine publication business. Consequently if a non-resident corpo*350ration sees fit to perform any one of those essential functions in a given jurisdiction, it necessarily follows that it is conducting its activities in such a manner as to be subject to jurisdiction.’
“It is clear under our decisions that when a nonresident prints a libel beyond the boundaries of the State, and distributes and publishes the libel in Alabama, a cause of action arises in Alabama, as well as in the State of the printing or publishing of the libel. Johnson Publishing Co. v. Davis, 271 Ala. 474, 124 So.2d 441; Weir v. Brotherhood of Railroad Trainmen, 221 Ala. 494, 129 So. 267; Bridwell v. Brotherhood of Railroad Trainmen, 227 Ala. 443, 150 So. 338; Collins v. Brotherhood of Railroad Trainmen, 226 Ala. 659, 148 So. 133.
“The scope of substituted service is as broad as the permissible limits of due process. Boyd v. Warren Paint & Color Co., 254 Ala. 687, 49 So.2d 559; Ex parte Emerson, 270 Ala. 697, 121 So.2d 914.” (Emphasis added.)
Accord, Connor v. New York Times, 5 Cir. 1962, 310 F.2d 133 (involving the same Alabama statute); cf. Gray v. American Radiator & Sanitary Corp., 1961, 22 Ill.2d 432, 176 N.E.2d 761. It should be remembered that the Alabama statute, unlike the Illinois statute construed in Gray, does not contain a provision for torts committed within the State. If it did, our search would be ended as to Alabama citizens since the effective tort would be here. Since it is not a tort statute, we must look to the question of doing “any business.” Dooly v. Payne, 5 Cir. 1964, 326 F.2d 941, 945.
Therefore, unlike the situation in Buckley v. New York Times Co., 5 Cir. 1964, 338 F.2d 470, the State Supreme Court has already held that activities such as here present constitute doing “any business” as that term is used in the Alabama long-arm statute. Moreover, the number of papers circulated in Louisiana in the Buckley case both in absolute and comparative terms was considerably less than the circulation of the Post in Alabama. The Times had a maximum circulation of 1,784 papers on Sunday and only 391 papers per day during the rest of the week. The New York Herald Tribune had a maximum daily circulation of 43 papers and the Charleston Gazette managed to sell only one paper containing the libel, while the Cincinnati Post and Times Star averaged only 13 papers per day. The Commercial Appeal, Florida Times-Union and Des Moines Town Register fared no better. None of these papers had any substantial contact with Louisiana. Judge Brown dissented from the Court’s holding as to the 1,784 issues of the New York Times. Certainly 69,552 copies of the Post circulated in Alabama constituted substantially more significant contact than any present in the Buckley case. If the present case involved Alabama citizens or residents, I would hold that the service of process was valid. Connor v. New York Times, 5 Cir. 1962, 310 F.2d 133.
Under the facts of this case, I fully concur in the amended opinion and would add a few remarks.
The history of the long-arm statutes indicates that one of their major purposes was to allow the forum state to take jurisdiction in order to protect its citizens where fundamental events giving rise to the cause of action took place in the forum state. The very restrictive concepts the Supreme Court had adopted in Pennoyer v. Neff, 1877, 95 U.S. 714, 24 L.Ed. 565, were shed in International Shoe Co. v. State of Washington, 1945, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95. The Supreme Court said (326 U.S. at 316, 66 S.Ct. at 158):
“Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant’s person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff, 95 U.S. 714, 733 [24 L.Ed. 565]. But now that the capias ad respondendum has given way to personal service of *351summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ”
Lest the casual reader think the process of determining when a corporation is amenable to suit is purely mechanical, the Supreme Court went on to say (326 U.S. at 319, 66 S.Ct. at 159):
“The test is not merely, as has sometimes been suggested, whether the activity, which the corporation has seen fit to procure through its agents in another state, is a little more or a little less. St. Louis S. W. R. Co. [of Texas] v. Alexander, supra, 227 U.S. [218] 228 [33 S.Ct. 245, 57 L.Ed. 486]; International Harvester Co. [of America] v. Com. of Kentucky, supra, 234 U.S. [579] 587 [34 S.Ct. 944, 58 L.Ed. 1479]. Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations. Gf. Pennoyer v. Neff, supra [95 U.S. 714, 24 L.Ed. 565]; Minnesota Commercial Men’s Ass’n v. Benn, 261 U.S. 140 [43 S.Ct. 293, 67 L.Ed. 573].
“But to the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state. The exercise of that privilege may give rise to obligations, and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue.” (Emphasis added.)
The holding in International Shoe has been summarized as the “minimum contacts” principle and was amplified in McGee v. International Life Ins. Co., 1957, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed. 2d 223. International Life assumed the obligations of another life insurance company in 1948. From its principal place of business in Texas, International Life mailed to McGee in California a reinsurance certificate. McGee accepted and continued to mail premiums to International Life in Texas until his death in 1950.2 The record revealed no contacts with California other than this single policy. In sustaining the validity of the extraterritorial service of process for the suit in California, 3 thes Supreme Court said (355 U.S. at 223, 78; S.Ct. at 201):
“Turning to this case we think it. apparent that the Due Process Clause did not preclude the California court, from entering a judgment binding on respondent. It is sufficient for purposes of due process that the suit was: based on a contract which had sub-*352tantial connection with that State. Cf. Hess v. Pawloski, 274 U.S. 352 [47 S.Ct. 632, 71 L.Ed. 1091]; Henry L. Doherty & Co. v. Goodman, 294 U.S. 623 [55 S.Ct. 553, 79 L.Ed. 1097]; Pennoyer v. Neff, 95 U.S. 714, 735 [24 L.Ed. 565]. The contract was delivered in California, the premiums were mailed from there and the insured was a resident of that State when he died. It cannot be denied that California has a manifest interest in providing effective means of redress for its residents when their insurers refuse to pay claims. These residents would be at a severe disadvantage if they were forced to follow the insurance company to a distant State in order to hold it legally accountable.”
In Hanson v. Denckla, 1958, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283, the Supreme Court held extraterritorial service of process insufficient to gain personal jurisdiction over a trustee where the court below had read International Shoe too broadly:
“ * * * progress in communications and transportation has made the defense of a suit in a foreign tribunal less burdensome. In response to these changes, the requirements for personal jurisdiction over nonresidents have evolved from the rigid rule of Pennoyer v. Neff, 95 U.S. 714 [24 L.Ed. 565], to the flexible standard of International Shoe Co. v. State of Washington, 326 U.S. 310 [66 S.Ct. 154, 90 L.Ed. 95]. But it is a mistake to assume that this trend heralds the eventual demise of all restrictions on the personal jurisdiction of state courts. See Vanderbilt v. Vanderbilt, 354 U.S. 416, 418 [77 S.Ct. 1360, 1 L.Ed.2d 1456], Those restrictions are more than a guarantee of immunity from inconvenient or distant litigation. They are a consequence of territorial limitations on the power of the respective States. However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the ‘minimal contacts’ with that State that are a prerequisite to its exercise of power over him. See International Shoe Co. v. State of Washington, 326 U.S. 310, 319 [66 S.Ct. 154, 90 L.Ed. 95].”4
Thus the teachings as to nonresident jurisdiction reveal several key principles. It is “essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, supra, 357 U.S. at 253, 78 S.Ct. 1228, at 1240, 2 L.Ed.2d 1283. In the instant case, I think this part of the formula is clearly fulfilled. Post circulates over 60,000 copies per issue in Alabama out of the 6,500,000 copies published, or about .008% of its total circulation. In addition, over 4,000 copies are sold off newsstands. On occasions Post solicits advertising in Alabama. I submit that Post has actively submitted itself to the benefits of Alabama’s fruitful market place just as much as did International Life with its single contract of insurance in the McGee case. *353Having accepted the benefits of the market place, it cannot complain that one of the fruits of the harvest was a lawsuit.
But there is a second essential ingredient necessary before the formula can be followed to successful in personam jurisdiction ; and that is the State’s interest in the litigation. The amended opinion clearly and correctly concludes that this second essential ingredient is lacking and therefore the service of process must be quashed.
. The State’s right to subject nonresidents to in personam jurisdiction hy extraterritorial service of process is limited hy the due process clause of the fourteenth amendment,
. While that case involved only a single contract, it is not precedent for the proposition that a single sale is sufficient to constitute the minimum contact required by due process. That must be determined on a case by case basis, taking into account all of the circumstances. See Elkhart Engineering Corp. v. Dornier Werke, 5 Cir. 1965, 343 F.2d 861 (applying the Alabama statute to a single occurrence) ; Rosenblatt v. American Cyanamid Co., 1965, 86 S.Ct. 1, 3, 15 L.Ed.2d 39. The sending of premiums to International Life constituted a continuing course of conduct. Cf. Erlanger Mills v. Cohoes Fibre Mills, 4 Cir. 1956, 239 F.2d 502; Dooly v. Payne, 5 Cir. 1964, 326 F.2d 941.
. This suit arose when the plaintiffs attempted to enforce their California judgment in the Courts of Texas. The Court-of Civil Appeals of Texas held that the-California service of process was invalid1 and refused to enforce the judgment. The United States Supreme Court reversed.
. In Dooly v. Payne, 5 Cir. 1964, 326 F.24 941, 943, this Court, speaking through Judge Jones, in construing the Alabama long-arm statute, warned of the federal constitutional limits:
“The McGee case was followed in the' same term, by Hanson v. Denckla [357 U.S. 235, 78 S.Ct. 1228, 2 D.Ed.2d 1283] which teaches that, although the door of non-resident jurisdiction has been opened wider by International Shoe Co. [326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 2d 95] and McGee [355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223], it has not been removed from its hinges, and it is stated to be the rule that ‘it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’ 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283. It is the quality and nature of the activity rather than mechanical tests, that are controlling in determining whether the minimum contacts test of due process has been met, and each case is to be decided on its facts and under the law of the forum state.”