The opinion of the court was delivered by
Appellants seek reversal of a district court order refusing to suppress certain inquisition testimony allegedly taken unlawfully and in violation of appellants’ federal and state constitutional rights.
On behalf of the state of Kansas and the state highwаy commission the attorney general in February, 1966, commenced this action against thirteen corporate suppliers of liquid asphalt, alleging the corporations had allocated territory and rigged prices on their asphalt salеs to the highway commission in violation of the Kansas antitrust laws (K. S. A. 50-101, et seq.). The action sought recovery of damages and attorney fees (50-108), the full consideration paid (50-115), one hundred dollars per day for each day of the unlawful activity (50-145) and ouster and injunction from participation in such unlawful activity (50-146).
In the fall of 1965, and prior to filing the action, and as a part of an investigation of the conduct of the corporate suppliers of asphalt, the attorney general subpoenaed certain sales employees of the corporations to appear and testify at an inquisition pursuant to K. S. A. 50-153. The witnesses were granted immunity from prosecution as provided in K. S. A. 50-156 and were required to answer questions propounded to them. All proceedings were recorded and transcribed by a certified shorthand reporter and in some instances the witnesses signed transcripts of their testimony. Where a witness was accompanied by counsel, counsel was permitted to remain until immunity wаs granted to the witness at which time counsel was required to leave.
In October, 1967, the state attempted in this action to depose *187 certain witnesses who had testified at the inquisition. Counsel for the state, in response to inquiry, indicated use would be made of die inquisition testimony in the event the witnesses “in any way become reluctant or indicate a lack of memory.” The witnesses on advice of then' attorneys, who with one exception were also attorneys for the respective сorporate employers, thereupon refused to testify and their counsel demanded suspension of the taking of the depositions pursuant to K. S. A. 60-230(d) on the ground the examination was being conducted in bad faith and in such a manner to annoy, embаrrass, and oppress the deponent.
Two individual witnesses and eleven corporate defendants then filed in the trial court motions to suppress the inquisition statements taken of the various witnesses and their use by the attorney general in any way in thе trial of the case. The trial court directed that copies of the statements be furnished to counsel for movants but denied the motion to suppress. Certain of the corporate defendants and one individual witness, Archibald C. Jones, an employee of defendant Mobil Oil Corporation, filed notices of appeal to this court from that denial order.
Appellants contend the action of the attorney general in denying the witnesses and their employers representation by counsel during the inquisitions was violative of their rights under the fifth, sixth and fourteenth amendments of the federal constitution and sections ten and eighteen of the bill of rights of our state constitution. Appellants do not attack the constitutionality of our inquisition statutes but assert they were used in an unconstitutional manner when the witnesses compelled to testify were denied counsel.
The corporate appellants assert they — the corporations — had a constitutional right to be represented by counsel at the inquisition. Appellees broadly contend a corporation as such has no constitutional rights. There are cases holding the privilege against self-incrimination is a personal one which can be raised by individuals alone and does not extend to a corporation (see
United States v. Bowman,
The corporate appellants argue they had a right to be represented by counsel at the inquisitions because they were the ones against whom the inquisitions were directed. They maintain they were “parties aggrieved” by the inquisitions. They would equate their standing to raise the question with the right to complain accorded one against whom a search was directed as declared by search and seizure cases like
Jones v. United
States,
The inquisition procedure here involved is an historically well-known legislative device enabling the state’s chief law enforcement officer to gather information necessary for effective enforcement of our antitrust laws. The proceeding is not adversary but is ex parte; it is investigative and not adjudicatory. Of course, facts uncovered through it may lead to an adjudicatory hearing, civil or criminal, the same as information disclosed by any other methоd of investigation. That which the corporate appellants are really asserting is the right to be present during the attorney general’s investigation. The right to an adjudicatory hearing includes the right to counsel. But we know of no constitutional right in anyоne to be present at an investigation simply because his conduct is the subject of the inquiry and he may in the future be prosecuted as a result of information developed during the investigation. A witness appearing in an inquisition could well be a formеr employee of a corporation or he could be a person without any business connection with the corporation; in either event we know of no right in the corporation to be notified of the proceeding, to appear thereat or to be represented by counsel. It is true vitally relevant information concerning violations of our antitrust laws may sometimes be secured only through the testimony of employees or agents of those corporаtions suspected of irregularities. Our inquisition statutes furnish a procedure to obtain such information which might not otherwise be obtainable. Nevertheless, the employees appear as mere witnesses at a private proceeding. In thе instant case the employees are *189 described as sales representatives. Does the fact the witnesses happen to be employees of a corporation give rise to any constitutional right in the corporatiоn to be represented by counsel at the proceeding? We find no persuasive authority to that effect and we think no such right arises. The witnesses themselves may be compelled to attend and give evidence but the corporation is not under compulsion to do anything. The witnesses may be required to testify only after complete immunity from prosecution is granted. If the corporate employers have entitlement to greater rights at the hearing simply because the witnesses еxamined happen to be their employees, where does that entitlement end? Do they thereby step into the shoes of the witnesses and assume their rights? Such a merging of identities would be illogical. Carried to its extreme the employers would get thе benefit of the immunity granted to the witnesses because of the employer-employee relationship. This absurd result, of course, would defeat the principal purpose of the inquisition statutes.
We hold then that at an inquisition held pursuant to K. S. A. 50-153 wherе an employee is questioned about possible antitrust law violations by his corporate employer the corporation has no constitutional right to be represented by counsel.
The corporate appellants alsо question the denial of right to counsel of their employees. The right to counsel is a privilege of a personal nature and, where it exists, its violation may be asserted only by the one entitled to claim the privilege (see
Hale v. Henkel,
We trun to appellant Jones’ contention he was denied his constitutional right to counsel when his inquisition testimony wаs taken. Jones relies primarily upon the dissenting opinion of four justices in
In re Groban,
In the cаse at bar Jones, along with the other witnesses, was granted immunity from prosecution pursuant to K. S. A. 50-156 which provides:
“No person shall be excused from testifying in any proceeding under this act, or in any action under any of the laws referred to in section 1 [50-153] оf this act, on the ground that his testimony may incriminate him; but no person shall be prosecuted or punished on account of any transaction or matter or thing concerning which he shall be compelled to testify, nor shall such testimony be used against him in аny prosecution for any crime under the laws of this state.”
The fact immunity was granted removes this case from the crux of the Groban dissent, not to mention the fact the proceedings were recorded and transcribed by a certified shorthand reporter, and the transcripts signed by the witnesses. We are aware of no authority condemning an inquisition procedure where immunity has been granted to the witness.
It is argued the right to counsel is broader than the mere privilege against self-incrimination. Certainly this would bе true in an adjudicative proceeding, but we can see no harm from the absence of counsel in a purely investigatory proceeding. Moreover, our immunity provision protects against more than violation of the self-incrimination right — it gives the witness complete immunity from prosecution for any transaction concerning which he is compelled to testify.
Although we are not concerned with determining rights in other jurisdictions, it has been held that any testimony elicited in such a proceeding, or its fruits, as distinguished from independent evidence, may not be used in federal prosecutions against the witness— the witness and the federal government are left in the same position as if the witness claimed his privilege in the absence of a state grаnt of immunity
(Murphy v. Waterfront Comm'n.,
*191 We hold that a witness at an inquisition who has been granted immunity pursuant to K. S. A. 50-156 has no constitutional right to be assisted by counsel in giving testimony.
Finally, it is urged the attorney general exceeded his statutory authority in the denial of counsel to appellants during the inquisition. Without laboring the matter, much of that which has already been said is applicable. The statutes provide essential safeguards for the witnesses and we find no violation of the statutes.
The trial court’s order was correct and it is affirmed.
APPROVED BY THE COURT.