State ex rel. Londerholm v. American Oil Co., 45396

• Decision Date: 09 November 1968
• Docket Number: No. 45396,45396
• Citation: 202 Kan. 185,446 P.2d 754
• Parties: STATE of Kansas ex rel., Robert C. LONDERHOLM, Attorney General, the State Highway Commission of Kansas, Appellees, v. AMERICAN OIL COMPANY, Colorado Oil and Gas Corporation, Phillips Petroleum Company, Skelly Oil Company, Mobil Oil Corporation, Wilshire Oil Company of Texas, Archibald C. Jones, Appellants.
• Court: Kansas Supreme Court

Page 754

446 P.2d 754

202 Kan. 185

STATE of Kansas ex rel., Robert C. LONDERHOLM, Attorney General, the State Highway Commission of Kansas, Appellees, v. AMERICAN OIL COMPANY, Colorado Oil and Gas Corporation Phillips Petroleum Company, Skelly Oil Company Mobil Oil Corporation, Wilshire Oil Company of Texas, Archibald C Jones, Appellants.

No. 45396.

Supreme Court of Kansas.

Nov. 9, 1968.

Syllabus by the Court

1. At an inquisition held pursuant to K.S.A. 50-153 where an employee is questioned about possible antitrust law violations by his corporate employer, the corporation has no constitutional right to be represented by counsel.

2. The constitutional 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.

3. A corporation has no standing to raise the question of denial of the constitutional right to counsel of its employees testifying at an inquisition held pursuant to K.S.A. 50-153.

4. 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.

5. In an appeal from an order refusing to suppress inquisition statements or their use in a pending action based on violation of antitrust laws, the record is examined and it is held, the testimony given at the inquisition was not taken in violation of appellants' constitutional rights, nor was it taken unlawfully.

Leroy, Jeffers and Travis C. Broesche, Houston, Tex., argued the cause, and Thomas M. Van Cleave, Jr., Kansas City, and S. E. Floren and Lewis J. Ottaviani, Bartlesville, Okl., were them on the brief for appellant Phillips Petroleum Co.

Philip E. Buzick, Topeka, and Walter T. Kuhlmey and H. Laurance Fuller, Chicago, Ill., were on the brief for appellant American Oil Co.

Robert H. Bingham, Kansas City, and Edward F. Howrey, and A. Duncan Whitaker, Washington, D. C., and Charles F. Rice, New York City, were on the brief for appellant Mobil Oil Corporation.

Joseph W. Kennedy, Wichita, and Charles W. McDermott, Colorado Springs, Colo., were on the brief for appellant Colorado Oil and Gas Co.

L. M. Cornish, Jr., Topeka, and John F. Smith and Charles L. Bacon, Kansas City, Mo., were on the brief for Skelly Oil Co.

Harry W. Colmery, Topeka, and Robert J., Woolsey, Tulsa, Okl., were on the brief for appellant Wilshire Oil Co. of Texas.

E. Gene McKinney, Topeka, argued the cause and was on the brief for appellant Archibald C. Jones.

John A. Anderson, Jr., Sp. Asst. Atty. Gen., argued the cause, and Robert C. Londerholm, Atty. Gen., Dean Burkhead, Asst. Atty. Gen., and John Morse, Chief Counsel of Kansas State Highway Commission, were with him on the brief for appellees.

HARMAN, Commissioner.

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 highway 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 sales 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 was granted to the witness at which time counsel was required to leave.

In October, 1967, the state attempted in this action to depose certain witnesses who had testified at the inquisition. Counsel for the state, in response to inquiry, indicated use would be made of the inquisition testimony in the event the witnesses 'in any way become reluctant or indicate a lack of memory.' The witnesses on advice of their attorneys, who with one exception were also attorneys for the respective corporate 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, embarrass, 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 the 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 attach 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, D.C., 236 F.Supp. 548, and cases cited therein). However, we know of no reason why constitutional privileges which by their nature may be applicable to artificial creatures such as corporations should be denied. We consider the right to counsel to be of that character. At the very least, a corporation is a 'person' entitled to the protection of the due process clauses of the fifth and fourteenth amendments (Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660) and of section eighteen of the Kansas bill of rights.

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, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697. We do not think that line of cases, decided as they were on the basis as to who may qualify as a 'person aggrieved by an unlawful search and...