Montana Attorney General Opinion 16-225

Opinion No. 225. Corporations--Corporation Licenses- Tax Returns-Photostatic Copies- Certified Copies-State Board of Equalization-Public Records Defined -Public Writings Defined-Governor. HELD: Corporation license tax re- turns are and remain private writings until the Governor shall make a blanket order to the effect that they are public records. In the absence thereof a private individual is not en- titled to inspect, to take photostatic copies of, or to receive certified copies of anyone corporation's license tax return. January 9, 1936. Hon. Elmer Holt Governor of Montana The Capitol You have asked us to define your powers in the matter of allowing one Joe L. Clark to make photostatic copies or, in lieu thereof, to obtain certified copies of the corporation li- cense tax returns of the Castile Land Company for the years 1924 to 1934, inclusive. If these returns be public records or public writings then Sections 455, 10542 and 10543, Revised Codes 1921 are applicable. (Whalen v. Superio~ Court, 46 Pac. 468; Harrison v. Pow- ers, 127 Pac. 818; Coldwell v. Board of Public Works, 202 Pac. 879; Find- ley v. Industrial Accident Commission 241 Pac. 912; State v. Grace, 5 Pac: (2d) 301; Fox West Coast Theatre v. Industrial Commission, 7 Pac. (2d) 582; State v. Keller, 21 Pac. (2d) 807. ) These sections read as follows: "Section 455. The public records and other matters in the office of any officer are at all times, during office hours, open to the inspection of any person. In cases of attach- ment, the clerk of the court with whom the complaint is filed must not make public the fact of the filing of the complaint, or the issuing of such attachment, until after the fil- ing of return of service of attach- ment. "Section 10542. Every citizen has a right to inspect and td.ke a copy of any public writings of this state, ex- cept as otherwise expressly provided by statute. "Section 10543. Every ilublic of- ficer having the custody of !>. public writing, which a citizen has a right to inspect, is bound to give him, on demand, a certified copy of it, on payment of the legal fees therefor, and such copy is admissible as evi- dence in like cases and with like ef- fect as the original writing." But are the returns in question pub- lic records or public writings as de- fined by law? "Public records" and "public writings" mean the same thing. They are interchangeable terms and convey the same idea. (Steiner v. McMillan, 59 Mont. 30; Evans v. District Court, 293 Pac. 323; 53 C. J. 604.) Public writings are the written· acts or records of the acts of the sovereign authority, of official bodies and tribunals, and of public officers, legislative, judicial, and ex- ecutive, whether of this state, of the United States, of a sister state, or of a foreign country, and are also pub- lic records, kept in this state, of pri- vate writings. (Sec. 10540, R. C. M. 1921.) They are divided into four classes: (1) laws; (2) judicial records; (3) other official documents, and (4) public records, kept in this state, of private writings. (Sec. 10544, R. C. M. 1921.) Section 2299, Revised Codes 1921, as amended by Section 1 of Chapter 146, Laws of 1923, re- quires every corporation subject to the corporation license tax to file with the State Board of Equalization a sworn return of its net annual in- come. Section 2300, as amended by Section 2 of Chapter 146, Laws of 1923, then requires the board to ex- amine each return and to assess the amount of the tax due from each corporation. Section 2302, as amend- ed by Section 3 of Chapter 146, Laws of 1923, provides: "When the as- sessment shall be made as provided in this act, the returns, together with any corrections thereof which may have been made by the State Board of Equalization, shall be filed in the 234 OPINIONS OF THE ATTORNEY GENERAL office of said board, and shall consti- tute public records and be open to in- spection as such only upon the order of the Governor, and under the rules and regulations to be prescribed by the State Board of Equalization." Un- less and until the governor, therefore, makes a blanket order to the effect that these corporate returns are pub- lic records they remain in effect pri- vate writings. (Section 10539, R. C. M. 1921; Whelan v. Superior Court, supra.) . As the returns of the Castile Land Company are now private documents in the custody of the State Board of Equalization, Clark is not entitled to inspect them or to have photostatic copies made of them, or to receive certified copies of them from the proper officer. (Whelan v. Superior Court, supra; Findley v. Industrial Accident Commission, supra; Bend Pub. Co. v. Haner, 244 Pac. 868; Round v. O'Meara, 83 N. E. 412.)