Mario J. Palumbo
Donald Darling
Donna S. Quesenberry
Office of the Attorney General
Charleston, West Virginia
Attorneys for the Appellant

David Lockwood
Lockwood, Egnor, Gardner & Cyrus
Huntington, West Virginia
Attorney for Graley's Body Shop, Inc., Appellee

William D. Levine
St. Clair & Levine
Huntington, West Virginia
Attorney for Geer Brothers Body Shop, Inc., Appellee

Lafe Chafin
Barrett, Chafin & Lowery
Huntington, West Virginia
Attorney for Keaton's Body Shop, Inc., Appellee

Helen M. Morris
Baer, Colburn & Morris
Huntington, West Virginia
Attorney for Huntington Chrysler-Plymouth, Inc., Appellee

James Allan Colburn
Baer, Colburn & Morris
Huntington, West Virginia
Attorney for Olen L. Doddridge, Appellee

Fred B. Westfall, Jr.
Huddleston, Bolen, Beatty, Porter & Copen
Huntington, West Virginia
Attorney for Galigher Ford, Inc., Appellee

CHIEF JUSTICE McHUGH delivered the Opinion of the Court.

        1. The question of whether a particular statutorily defined penalty is civil or criminal is a matter of statutory construction, and requires the application of a two-level inquiry adopted by the United States Supreme Court in United States v. Ward, 448 U.S. 242, 100 S. Ct. 2636, 65 L. Ed. 2d 742 (1980). First, courts must determine whether the legislature indicated, either expressly or impliedly, a preference for labelling the statute civil or criminal. Second, if the legislature indicates an intention to establish a civil remedy, courts must consider whether the legislature, irrespective of its intent to create a civil remedy, provided for sanctions so punitive as to transform the civil remedy into a criminal penalty. As part of the second level of the inquiry, courts should be guided by the following factors identified by the United States Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 567-68, 9 L. Ed. 2d 644, 661 (1963): "Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment---retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned[.]"

        2. The proceedings conducted and the monetary penalties imposed under the West Virginia Antitrust Act, W. Va. Code, 47-18-1 to 47-18-23, as amended, are civil, and not quasi-criminal in nature, and therefore, suspected violators of the Antitrust Act do not have the right to be informed that they are targets of an investigation nor do they have the right to be informed that they may have counsel present at oral deposition. In subpoenas issued pursuant to an investigation under the Antitrust Act, the Attorney General should adequately inform suspected violators of the conduct constituting a violation of the Antitrust Act.

McHugh, Chief Justice:

        The Attorney General, Mario J. Palumbo, on behalf of the State of West Virginia, seeks review of an order of the Circuit Court of Cabell County which dismissed, with prejudice, a complaint filed by the Attorney General against the appellees, Graley's Body Shop, Inc., et al., alleging that they violated the West Virginia Antitrust Act (Antitrust Act), W. Va. Code, 47-18-1 to 47-18-23, as amended, by participating in a price-fixing scheme. Upon review of the case before us, we conclude that the order of the circuit court should be reversed.

        As part of the second level of the inquiry, the Supreme Court tested the statutory scheme against the following standards set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 567-68, 9 L. Ed. 2d 644, 661 (1963), a case involving the issue of whether statutes which imposed automatic forfeiture of citizenship were penal in character:

        Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment--retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned[.]

        Applying the first inquiry of the Ward test in the present case, we believe that the provisions of the Antitrust Act clearly reflect an intent by the legislature to have the Act serve as a civil remedy. To begin with, the legislature did not label either the investigation or the proceedings under the Antitrust Act as criminal. Although W. Va. Code, 47-18-7(a) [1978],See footnote 2 which sets forth the Attorney General's authority under the Antitrust Act, does not refer to the proceedings as criminal or civil, other provisions, specifically W. Va. Code, 47-18-10 [1978]See footnote 3 and W. Va. Code, 47-18-12 [1978],See footnote 4 refer to the State's action under the Antitrust Act as a civil proceeding. Moreover, other sections of the Antitrust Act are clearly civil in nature, such as the provisions for: (1) injunctive relief, W. Va. Code, 47-18-8 [1978]; (2) damages, attorney's fees and treble damages,See footnote 5 W. Va. Code, 47-18-9 [1978]; (3) the four-year statute of limitations for bringing actions, W. Va. Code, 47-18-11 [1978]; and (4) the antitrust enforcement fund, W. Va. Code, 47-18-18 [1978] and 47-18-19 [1978]. Thus, we find that the Antitrust Act is comprised of provisions which clearly show the legislature's intention to establish a civil remedy for antitrust violations.

        Having determined that the legislature intended the Antitrust Act to be a civil remedy, we must next consider, using the Mendoza-Martinez factors, whether its sanctions are so punitive as to transform it into a criminal penalty. Applying the Mendoza-Martinez factors to the statute on its face, we first find that the sanctions under the Antitrust Act do not involve an affirmative disability or restraint.See footnote 6 Next, as to whether the Antitrust Act has historically been considered as a punishment, we observe that monetary penalties under the Antitrust Act "are traditionally a form of civil remedy[.]" Ward, 448 U.S. at 256, 100 S. Ct. at 2645, 65 L. Ed. 2d at 754 (Blackmun, J., concurring). See Kimmelman v. Henkels & McCoy, Inc., 527 A.2d 1368, 1373 (N.J. 1987).See footnote 7 Furthermore, there is no mention under our Antitrust Act that a finding of scienter must be made in order for the sanctions to "come into play." As to the fourth factor, although the imposition of monetary sanctions could be used to "promote traditional aims of punishment--retribution and deterrence," the fact that all money received by the State is placed in the antitrust enforcement fund to cover the costs incurred by the State in the enforcement of the Antitrust Act is another persuasive indication that the statute is civil.See footnote 8 Ward, 448 U.S. at 256, 100 S. Ct. at 2645, 65 L. Ed. 2d at 754 (Blackmun, J., concurring) (the fact that collected assessments under the Federal Water Pollution Control Act are deposited in a revolving fund used to defray the cost of cleanup operations is a strong indicator of the civil thrust of the statutory scheme). Finally, with respect to the sixth and seventh factors, the sole purpose of this statute thus far has been to restrain violations of the Antitrust Act, and we have not been presented with any set of facts which would indicate that it is excessive.

        In the present case, only the fifth factor, which relates to whether the behavior under the Antitrust Act is already a crime, might support the appellees' argument that the Antitrust Act is quasi-criminal.See footnote 9 Under our Antitrust Act, there are no provisions recognizing violations of the statute as a crime, or providing for forfeiture of property or imprisonment upon violating the statute. Thus, a violation under our Antitrust Act only gives rise to a civil penalty.

        The federal Antitrust Act, on the other hand, has separate sections providing for both civil and criminalSee footnote 10 violations. A violation under our state antitrust laws could possibly give rise to a violation under the federal civil and criminal antitrust laws.See footnote 11 However, the fact that the conduct which results in a violation of our Antitrust Act could also potentially be a violation of the criminal provisions under the federal Antitrust Act does not automatically render our state Antitrust Act quasi-criminal. Under our Antitrust Act, the legislature has specifically directed that the statute "be construed liberally and in harmony with ruling judicial interpretations of comparable federal antitrust statutes." W. Va. Code, 47-18-16 [1978] (emphasis added); see also syl. pt. 2, Gray v. Marshall County Board of Education, 179 W. Va. 282, 367 S.E.2d 751 (1988) (The courts of this state are directed by the legislature in W. Va. Code, 47-18-16 [1978] to apply the federal decisional law interpreting the Sherman Act, 15 U.S.C. § 1, to our own parallel antitrust statute, W. Va. Code, 47-18-3(a) [1978]). However, because the federal criminal antitrust provisions are not comparable to our state civil antitrust provisions, the rights afforded under the federal criminal antitrust provisions would not be applicable to our state civil antitrust statute.

        In summary, we hold that the question of whether a particular statutorily defined penalty is civil or criminal is a matter of statutory construction, and requires the application of a two-level inquiry adopted by the United States Supreme Court in United States v. Ward, 448 U.S. 242, 100 S. Ct. 2636, 65 L. Ed. 2d 742 (1980). First, courts must determine whether the legislature indicated, either expressly or impliedly, a preference for labelling the statute civil or criminal. Second, if the legislature indicates an intention to establish a civil remedy, courts must consider whether the legislature, irrespective of its intent to create a civil remedy, provided for sanctions so punitive as to transform the civil remedy into a criminal penalty. As part of the second level of the inquiry, courts should be guided by the following factors identified by the United States Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 567-68, 9 L. Ed. 2d 644, 661 (1963):

        Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment---retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned[.]

        In the present case, we are not persuaded that any of the Mendoza-Martinez factors indicate that the West Virginia Antitrust Act is quasi-criminal. Therefore, we conclude that the proceedings conducted and the monetary penalties imposed under the West Virginia Antitrust Act, W. Va. Code, 47-18-1 to 47-18-23, as amended, are civil, and not quasi-criminal in nature.

        The subpoenas issued by the Attorney General requesting the appellees to appear for oral deposition stated:

            This subpoena is being issued pursuant to the authority granted to the Attorney General by W. Va. Code § 47-18-7 (1986) to assist him in an investigation of possible contracts, combinations, or conspiracies to restrain trade or commerce in the autobody [sic] repair business in Cabell County, West Virginia, in violation of W. Va. Code § 47-18-3 (1986).

        Notwithstanding the fact that our state Antitrust Act does not have a requirement similar to 15 U.S.C. § 1312(b), which requires the civil investigative demand to state the nature of the conduct constituting the alleged violation of the antitrust laws, we believe that the foregoing paragraph adequately informed the persons and corporations being investigated of the nature of the conduct constituting the violation.

        Next, as to whether the appellees had the right to be informed that they were the target of an investigation, once again we find no provision under our Antitrust Act which requires the Attorney General to inform them that they are the subject of an investigation. Furthermore, while there is a requirement under the federal act to state the nature of the conduct constituting the alleged violation in the civil investigative demand, there does not appear to be a provision which would require the civil investigative demand to state that the party is under investigation. See Lightning Rod, supra (no requirement under the act that the civil investigative demand state that the addressee is under investigation); Hyster Company v. United States, supra (civil investigative demand which stated that it was issued pursuant to the provisions of the Antitrust Civil Process Act was not required to state that corporation, on which demand was served, was under investigation). Thus, there is no requirement under either the state or federal antitrust statutes which would require the Attorney General to advise a party that he or she is the target of an investigation.

        With respect to the appellees' arguments that they were entitled to be informed that they had a right to have counsel, we find that our Antitrust Act contains no such requirement. The federal Antitrust Civil Process Act, specifically 15 U.S.C. § 1312(i)(7)(A) (1988), does provide, however, that "[a]ny person compelled to appear under a demand for oral testimony pursuant to this section may be accompanied, represented, and advised by counsel." (emphasis added). That provision does not, however, require the Attorney General to inform any person compelled to appear for oral testimony that he or she may have counsel present.

        Therefore, based on the discussion above, we conclude that the proceedings conducted and the monetary penalties imposed under the West Virginia Antitrust Act, W. Va. Code, 47-18-1 to 47-18-23, as amended, are civil, and not quasi-criminal in nature, and therefore, suspected violators of the Antitrust Act do not have the right to be informed that they are targets of an investigation nor do they have the right to be informed that they may have counsel present at oral deposition. In subpoenas issued pursuant to an investigation under the Antitrust Act, the Attorney General should adequately inform suspected violators of the conduct constituting a violation of the Antitrust Act. We find that the subpoenas issued to the appellees in the present case by the Attorney General adequately informed them of the conduct constituting a violation of the Antitrust Act.

reluctant if not unable to summon evidence until it is shown to be relevant to issues in litigation, it does not follow that an administrative agency charged with seeing that the laws are enforced may not have and exercise powers of original inquiry. It has a power of inquisition, if one chooses to call it that, which is not derived from the judicial function. It is more analogous to the [Investigative] Grand Jury, which does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not. When investigative and accusatory duties are delegated by statute to an administrative body, it, too, may take steps to inform itself as to whether there is probable violation of the law.

(emphasis added).

prevent, restrain or punish a violation of this article, the running of the statute of limitations . . . shall be suspended during the pendency thereof and for one year thereafter[.]"

claimed that these are penal actions requiring the application of different rules * * * from those that prevail in other actions for indemnity.' To whatever extent, therefore, that it may be argued that double or treble damages in a civil action amount to a penalty, they are, unless the statute otherwise indicates, a mere remedial sanction and do not in any way make the action subject to the rules or privileges of a criminal prosecution.

        Thus, we note that a violation of West Virginia's Antitrust Act may not necessarily give rise to a violation of the federal antitrust laws.

The Sixth Circuit further pointed out, however, that even if a witness establishes a reasonable fear of self-incrimination and prosecution, he or she may be compelled to testify if he or she is granted "use" immunity pursuant to 18 U.S.C. §§ 6001-6003. See 15 U.S.C. § 1312(7)(B) (1988).

(emphasis added). The record is devoid of any evidence to support these speculative assertions.