
    *D. T. Woodbury & Co. v. Samuel H. Berry.
    1. Where the words of a statute are plain, explicit, and unequivocal, a court is; not warranted in departing from their obvious meaning, although from considerations arising outside of the language of the statute, it may be convinced that the legislature intended to enact something different from what it did in fact enact. :
    2. Under the provision of section 455 of the code of civil procedure, as it stood prior to the amendment thereof of March 20, 1861 (S. & S. 565), a sheriff failing to execute or to return an execution within the time prescribed by the statute, could not legally be amerced by motion in the court of the county from which it issued, except on notice of such motion served fifteen days prior to the commencement of the term at which such motion-was made.
    Error to the district court of Marion county.
    The case is sufficiently stated in the opinion of the court, to-show the question decided.
    
      Godman & Davis, and Reid & Eaton, for plaintiffs in error:
    1. The judgment of the court below was based upon a construction of sections 451 and 455 of the code, which construction we believe to be erroneous.
    These two sections, although somewhat conflicting, are, in their letter, equally applicable to this case, so that the party moving to-amerce might well make choice of which he would proceed under,. and having chosen, a strict compliance with the section under which he proceeds will satisfy all the requirements of the statute-in the matter of notice. 6 Ohio St. 316.
    It is evident that a blunder was committed in copying section 455 from the act of Í831, and the context would seem to indicate-that the words “ other than the county ” (which appear in the old statute), inserted before the word “from” in section 455, would better express the intention of the legislature. See Swan’s Stat. of 1841, p. 485.
    It is palpably absurd to say that it was intended to require fifteen days personal notice in writing, or sixty days notice by mail, to a home sheriff, and only two days notice to the sheriff of another and perhaps distant county. And it will never be presumed that the legislature intended an absurd thing, whatever may be the literal import of their language. *1 Bla. Com. 91. Besides the [457 fact that section 454 and the beginning of section 455 plainlj refer to foreign sheriffs, tends directly to the conclusion that this-provision, found in immediate and intimate connection with what precedes, was intended to have a similar application. The definite-article “the,” in the phrase “ from which the execution issued,” unmistakably points to the word “ execution ” in the preceding-section.
    In view of the comieetion in which this provision is found, and of the singularly inconsistent requirements of the whole section, it may be reasonably said that, even when standing alone, this section is uncertain and ambiguous, and when considered by the side of section 451, which it is attempted to supersede by it, its uncertainty becomes palpable to the most obtuse perception. The court may, therefore, look beyond the words, and inquire into the intention of the legislature.
    We submit, therefore, that a provision of a statute which is clear and complete in itself, ought not to be overridden by a repugnant and ambignous provision following it in the same statute, unless it bo to effect the manifest intent of the legislature, because repeals by implication are not favored. 10 Ohio, 173; 1 Ohio St. 20 ; 6 Ohio St. 316; 8 Ohio St. 399, 264; 1 Bla. Com. 89.
    In the present case there is one, and but one, reasonable construction by which the two provisions may stand together, to wit, that, section 455 applies to foreign sheriffs, and to them alone. 1 Bla. Com. 89, 91.
    
      Penal statutes must be strictly construed according to the intention of tbe legislature. Sedg. on Stat. 324-334 ; 5 Wheat. 76; and that without regard to their letter. Sedg. 311, 312, 297, 298, 324-434; 3 Cowen, 89; 15 Johns. 358; 1 Pet. 64; 2 Ib. 662.
    The rule strictissimi juris is not applicable to this case. Code :sec. 2. The rule of the code is in derogation of the rule of the •common law in cases of amercement.
    The object of the sections of the code relating to amercements is ■“to induce fidelity on the part of the sheriff.” 10 Ohio, 48; “ and •will be construed by the court to effect that object.” 12 Ohio, 211
    * O. Bowen, for defendant in error:
    On a motion to amerce a sheriff, or other officer, of any county from which the execution issued, there must be at least fifteen days’ notice given to such officer of the time of hearing such motion. Code, secs. 451, 455.
    These two sections contain all of the requirements on the subject of notice in proceedings to amerce.
    . The latter one applies in its terms to a particular class of cases. It defines the notice that must be given to the officer who lives in ■the county from which the execution issued, before he can be .amerced. It is in that respect a qualification of the 451st section .as to such officers. The sentence is an independent one, and, commencing after a period, is plain and explicit in its terms. There is no ambiguity — no doubt as to its meaning. It is both plain and positive.
    
    But the plaintiffs say this is not what was intended; that 'the legislature -meant something else — designed that clause to apply to foreign sheriffs. I do not know of any rule of construction that •would make it thus read in any case however liberal the views of the court should bo in the interpretation of it. It was competent for the legislature to fix the notice which should be given to the ■.sheriff, whether he resided in or out of the county from which the execution issued, and having fixed it by peremptory and emphatic language, the court would hardly say there was no reason for the rule, and therefore disregard the same. It must govern unless set aside. It was competent for the legislature to fix the limit of the notice as to time, and to prescribe that it should be written or ver'bal, or. as was done, to direct that the notice be left with the officer, ••or at his office, or directed to him by mail.
    
      The whole proceeding was created by the statute, and must, if .carried out, be in strict accordance with the statute. The party who seeks a judgment of amercement must pursue strictly the route pointed out by the law which confers the remedy. It is, therefore, not a question whether the legislature acted wisely or unwisely in establishing this summary proceeding on the basis laid down. It is not proper to inquire «whether a “blunder” [459 was committed in framing the bill. It is not susceptible of two constructions.
    The very letter and spirit of the statute must be pursued' in order to obtain against an officer, under the sections of the statute to which I have referred, a judgment of amercement. Duncan v. Drakely, 10 Ohio, 47; Bank of Gallipolis v. Domigan, 12 Ohio, 220; Webb v. Alspaugh, 3 Ohio St. 522; Bushnell v. Eaton, Wright, 720; Conklin v. Parker, 10 Ohio St. 28; Report of Code Commissioners, 184, sec. 455; Moon v. McClief, 16 Ohio St. 50; Langdon v. Summer’s Adm’r, 10 Ohio St. 77.
   Brinkerhoff, J.

On the 20th of March, 1865, Woodbury & Co. recovered judgment, in the Marion county common pleas, against Hiram Tyler, for 1953.23, and costs of suit. On the 22d of the same month execution issued on this judgment, directed to Samuel H. Berry, the sheriff of said county, and which came to his hands on .the same day.

Under the provisions of section 448 of the code of civil procedure, it was his duty to return the execution to the court within sixty days from its date. This ho neglected to do; and he also failed to cause the same to be levied on real estate of Tyler within his county, and well known to him', as he ought to have done; and for both of these ■delinquencies he became liable to amercement, on motion, in the ■court from which the'writ issued, in the amount of the debt, dam.-ages, and costs, with ten per cent, thereon, for the benefit of the plaintiff in execution.

On the 31st of August, 1865, Woodbury & Co. filed in the Marion .common pleas their motion to amerce the sheriff for the causes .aforesaid, and on the same day served on him notice of thó motion, .and that the motion would be heard on the 4th of September, ensuing, or as soon thereafter as counsel could be heard, said 4th of '.September being the day on which the court regularly convened.

On the hearing of the motion the sheriff appeared in person and by counsel, and resisted the motion on the ground, among other 460] things, of the alleged insufficiency of the notice ^thereof, but four days’ notice of the motion haying been given, whereas, it was-contended, that by the provisions of section 455 of the-code fifteen days’ notice of such motion was required. The court, however, overruled this objection to the proceeding, and gave judgment-against the sheriff for the amount prescribed by the statute.

The rulings of the common pleas on this point having been duly excepted to, the sheriff, Bei-ry, prosecuted a petition in error in the-district court, which, at its August term, 1866, reversed the judgment of the common pleas; and it is to reverse this judgment of reversal and to affirm the judgment of the common pleas, that this-petition in error is prosecuted.

The only question in the case necessary for us to pass upon is this: Did the statute then in force require fifteen days’ notice of the motion to amerce, or was the four days’ notice which was given sufficient?

The only provisions of the statutes in force at the time the motion to amerce was made, which have or are supposed to have a bearing; on the question, are original sections 451 and 455 of the code of civil procedure; and in order that they maybe seen and read together; they are here given:

Sec. 451. “If any sheriff or other officer shall refuse or neglect-to execute any writ of execution to him directed, which has come to his hands; or shall neglect or refuse to sell any goods and- chattels, lands and tenements; or shall neglect to call an inquest, and return a copy thereof to the clerk’s office ; or shall neglect to return any writ of execution to the proper court, on or before the-return day thereof; or shall neglect to return a just and perfect-inventory of all and singular the goods and chattels by him taken in execution, unless the said sheriff or other officer shall return that, he has levied and made the amount of the debt, damages, and costs; or shall refuse or neglect, on demand, to pay over to the-plaintiff, his agent, or attorney of record, all moneys bjr him collected or received by him, for the use of said party, at anytime-461] after collecting or receiving the same, *except as provided in section four hundred and thirty-seven; or shall neglect or refuse,, on demand made by the defendant, his agent or attorney of record,, to pay over all moneys by him received for any sale made, beyond" what is sufficient to satisfy the writ or writs of execution, with in-Merest and legal costs; such sheriff or other officer shall, on motion in court and, two days’ notice thereof in writing, be amerced in the .-amount of said debt, damages, and costs, with ten per cent, thereon, to and for the use of said plaintiff or defendant, as the case may be.”

Sec. 455. “No sheriff shall forward by mail any money, made ■on any such execution, unless he shall be specially instructed to do it, by the plaintiff, his agent or attorney of record. In all cases of ■a motion to amerce a sheriff or. other officer of any county from which the execution issued, notice in writing shall be given to such officer, as .hereinbefore required, by leaving it with him or at Ms office, at least fifteen days before the first day of the term at lohich such motion shall he made, or by transmitting the notice by mail at least sixty days prior to the first day of the term at which such motion shall be made. All amercements, so procured, shall be entered on the record of the court, and shall have the same force and effect as a judgment.”

It will be seen that section 451 provides generally, that “ any .sheriff or other officer” guilty of any of .the delinquencies enumerated, may be amerced on motion, and two days’ notice thereof in writingand then section 455 comes in and provides for an exceptional case, to wit, the case of a “ sheriff or other officer of any ■county from which the execution issued." Now it certainly is difficult, if not impossible, to find any reason why an officer sought to be amerced by motion in the court of his own county, should be thus favored in the matter of notice, while, on the other hand, the ■circumstances of the case to be provided for, seem to require that the non-resident Officer ought to be thus favored. These considerations, and a comparison of the provisions of these sections of the ¡statute, as they stand with those of the statute which was superseded and repealed by the code of civil procedure, not only suggest the conjecture, but convince us of the fact, that the words, Mother than the county, or some equivalent phrase, must have [462 been, by accident or oversight of the draftsman of the bill to establish a code of civil procedure, or of the clerk who engrossed it, ■omitted before the words " from which the execution issued ” in .section 455. But, notwithstanding all this, ita lex scrvpta est. The language as it stands is clear, explicit, and unequivocal. It leaves no room for interpretation, for nothing in the language employed is doubtful. "We are satisfied, by considerations outside of the language, that the legislature intended to enact something very different from what it did enact. But it did not carry out its intention; and we can not take the will for the deed. It is our legitimate function to interpret legislation, but not to supply its omissions.

" When the law is clear and explicit, and its provisions are susceptible of but one interpretation, its consequences, if evil can only be avoided by a change of the law itself, to be effected by legislation, and not judicial action. Where a law is plain and unambiguous, whether it bo expressed in general or limited terms, the legislature should be intended to mean what they have plainly expressed,, and consequently nó room is left for construction.” Sedgwick on Statutory and Constitutional Law, 231.

Courts “ must not, even in order to give effect to what they may suppose to be the intention of the legislature, put upon the provision, of a statute a construction not supported by the words, even although the consequences should be to defeat the object of the act.” Smith’s-Com. on Statutory Construction, sec. 714.

Judgment affirmed.

Day, C. J., and Scott, Welch, and White, JJ., concurred.  