(dissenting). The facts of the case are these: David Smith w;as elected sheriff of Christian county at the November election, 1905. He qualified and gave bond. In the fall of 1907 the fiscal court appointed Frank Rives as commissioner to settle with Smith as sheriff. Smith got his papers ready; but, before the settlement was made, Rives, who was a member of the State Senate, came to Frankfort to' attend the session of the Legislature. He remained in Frankfort until the Legislature adjourned, something after the middle of March. Smith, being unable to get his settlement made, as Rives was absent, saw the county judge. A new act had been passed requiring a sheriff to have a quietus from the fiscal court. Smith could not get his quietus as the settlement had *373not been made; so he went to the county judge, asking if he would allow him to renew his bond before he got his quietus. The county judge said “No,” but he would give him time after the 1st of March to execute his bond. Smith, relying upon this statement of the county judge, was waiting until his settlement was made, so that he could get his quietus, when, without notice to him, the county judge made an order removing him from office, and appointing Renshaw in his place. When this was done, the bonds that Smith had given were amply good for all the liabilities which he was under and he was prepared on that day to execute a bond if he had been allowed to do ■ so. The county judge denies that he told Smith what Smith says; but Smith is sustained by the oath of two bystanders and so, as the case stands, it must be concluded at least that Smith was misled by the county judge. In Mecham on Public Officers, section 454, after stating the rule as to offices held at pleasure, the learned author says: “But, on the other hand, where the appointment or election is made for a definite term or during good behavior, and the removal is to be for cause, it is now clearly established by the great weight of authority that the power of removal cannot, except by clear statutory authority, be exercised without notice and hearing, but that the existence of the cause, for which the power is to be exercised, must first be determined after notice has been given to the officer of the charges made against him, and he has been given an opportunity to be heard in his defense.” In no state in the Union has this doctrine been maintained with more vigor than in Kentucky. In Page v. Harden, 8 B. Mon. 648, where the Governor had removed the Secretary of State without notice, the order was held void. This opinion was; *374followed in Todd v. Dunlap, 99 Ky. 460. 18 Ky. Law Rep. 329, 36 S. W. 541, and was recognized in Stokes v. Fitzpatrick, 1 Metc. 142, and Johnson v. Ginn Co., 105 Ky. 654, 20 Ky. Law Rep. 1475, 49 S. W. 470. The court undertakes to distinguish this case from those cases cited by saying that failure to execute a bond makes a vacancy in the office. Unfortunately for the court the statute does not so provide. The statutes now on the subject are the same as when the case of Schuff v. Pflanz, 99 Ky. 97, 18 Ky. Law Rep. 25, 35 S. W. 132, was decided. This is shown by the opinion by Judge Barker which is copied into the opinion of the court. One section of the statute provides that, on the failure of the sheriff “to execute bond and qualify as hereinbefore provided, he shall forfeit his office.” Another provision of the statute is in these words: “It shall be the duty of the county court to cause the sheriff, annually, to renew his bond required by this chapter, and oftener, if the court may deem proper; and upon his failure to do so, the court shall enter up an order suspending him from acting until he gives said bond, or the court may vacate his office.” "With these two provisions of the statute before it, this court in Schuff v. Pflanz thus construed it: “Section 4143 provides: ‘On the failure of the sheriff to execute bond and qualify, as hereinbefore provided, he shall forfeit his office.’ The right of forfeiture under this section is made to depend upon his failure to qualify; and, by section 4130, he is permitted to execute bond at any time before the 1st of January. Pflanz, as appears, did qualify in the proper time, by giving bond satisfactory to the county court, and entered upon the discharge of his duties, but failed to execute his annual bond on or before the first Monday in January, 1896, and it is main-*375tamed that the failure to execute this bond worked a forfeiture, and authorized the county judge to declare the office vacant. Pflanz was still in the office of sheriff; had qualified with the execution of a bond that afforded ample protection to the State and the county for all the revenue that might come to his hands. The securities on his bond at the date of his qualification bound themselves as such for and during, the entire term of his office. This bond, provided for by section 4133, was not for the collection and payment over of the revenue for the year 1895, hut stipulates that ‘We A. B., sheriff, and C. D. and E. F.r his sureties, bind and obligate ourselves jointly and severally, to the Commonwealth of Kentucky, that the said A. B., sheriff shall faithfuly perform his duties,’ etc. And the next section (4134) empowers the county to require the sheriff to give an additional bond or bonds where the interest of the State or county demands it, and the sureties on all the bonds shall be jointly and severally liable for any default of the sheriff during the term in which said bond may be executed, whether the liability accrued before or after ihe execution of the bond or bonds. These bonds are not taken for one year, but bind the sureties for any default during the .term for-which they may be executed; and it cannot well be said the sureties in these additional bonds are liable, for the whole term and those on the original bond are liable for one year only. So we have a case where the qualification has been perfect and complete and a statute providing only that a failure to execute bond and qualify shall forfeit the office.- Qualification means the execution of the bond, the oath of office. The question then arises: If the sheriff fails to give this annual bond for the collection of the revenue, can the county judge *376declare the office vacant? The sheriff is required to give two bonds — one for the collection of the revenue and the other known as the general official bond. Under the title of ‘Sheriff’ (section 4557) it is provided: ‘It shall be the duty of the county court to cause the sheriff, annually to renew his bond required by this chapter, and oftener if the court may deem proper, and upon his failure to do so, the court shall enter up an oi'der suspending him from acting until he gives said bond, or the court may vacate his office.’ This statute should be construed in connection with the revenue statute, and it is manifest that a fair interpretation of the legislative meaning is that, upon the failure to execute any bond required of this official for the protection of the State, county, or citizen, the county court may remove him from office; and particularly where by statute it is made the plain duty of the official to execute the bond on a particular day. The duty then devolves on the sheriff and he must comply with the law; but it does not follow because the sheriff fails to renew his general bond or to give an annual bond for the collection of the revenue that the county judge is powerless to accept a bond after the first Monday in January. He may, it is true, vacate the office, but before he does this he accepts a bond that is in addition to or a new bond, upon which the last sureties became jointly liable with the sureties on the first bond. It is a bond sufficient to satisfy the court that all will be protected who are.interested in its execution, and when accepted, the sheriff having previously qualified, it is then too late to enter an order vacating the office.”
The Legislature has since re-enacted the statute, and so must be conclusively presumed to have reenacted it under the construction which it received *377from this court. If the Legislature had been dissatisfied with the statute as construed by this court, it must be presumed that it would have changed it. Nothing can be plainer than that what we have quoted from Schuff v. Pflanz shows that the sheriff’s office was not rendered ipso facto vacant or forfeited by his failure to execute the renewal bond. Smith did not fail to execute bond and qualify. As he had executed bond and qualified two years before this trouble arose, his whole failure here was to execute a renewal bond. The statute plainly recognizes that his office does not become vacant npon his failure to execute the bond; for the language is: “Upon his failure so to do the court may enter up an order suspending him from acting until he gives said bond, or the court may vacate his office.” That the court has power under- this statute to vacate his office is-admitted; but that is a very different thing from saying that .his office is vacant when he fails to execute his bond and before the court makes any order. The power of the court to vacate his office depends upon its jurisdiction over him. His office is not vacated until it .is vacated by the court, and the court has no jurisdiction to make any order until it obtains jurisdiction over him by notice to him. I concede the doctrine that, where the statute so provides, an officer may be removed without notice, because he takes the office subject to this condition; but the statute in this case does not so provide. The county court is given a discretion. It may suspend the sheriff until he executes bond, which plainly implies that he may execute it after the time has passed in which it should have been given. The power given the county court to suspend the sheriff “from acting until he gives said bond” necessarily .implies that the sheriff acts unless suspended;' and,
*378as the statute confers upon the county court a discretion, manifestly the defendant must have notice that he may show to the county court how that discretion should be exercised. The cardinal error of the court is in this: That it overlooks the rule that the officer is entitled to notice unless the statute expressly otherwise provides. The statute here not only does not expressly or otherwise provide, but its provisions show beyond controversy that it contemplates judicial action by the county court, and judicial action cannot be taken against any one unless he is before the court. The case in hand well illustrates this. Who can believe that any self-respecting county judge would have removed a sheriff from office when the sheriff proved to him by two witnesses that he had told him that he could not execute his renewal bonds until he got his-quietus, and that he would give him time to execute the bonds, and also showed him that he had his sureties at hand and was prepared to give the bonds? Under the former statute the sheriff was required to execute his bonds by a certain time, and, if he failed to execute his bonds, the office became vacant. The Legislature intentionally changed the rule, and this court so declared in Schuff v. Pflanz. The statute, which was then in force, having been since re-enacted, should now receive the same construction as was then given it by the court.
The case which Judge Cook had before him when he granted the injunction now complained of was entirely a different case from that before Judge Barker. An appeal had been taken from the order of the county court to the circuit court. If the circuit court had jurisdiction, the county judge had no authority to make any orders in a matter that had been appealed to the circuit court. The county judge was a defend*379ant to Smith’s suit, and was therefore not qualified to sit in the case in which he proposed to act. The circuit court made his order under facts which were not before Judge Barker at all. That an appeal may be taken to the circuit court under section 978, Ky. St. 1903, from an order of the county court vacating the office of a sheriff, depends upon whether the amount in controversy is over $50. The court draws a distinction between “amount” in controversy and “value” in controversy. This is too fine to be substantial. The meaning of the Legislature is the same. The only reason that “amount” is used the second time in place of “value” is that the writer wished to avoid tautology. There is no substantial difference in the sense. Under a precisely similar provision the United States Supreme Court has repeatedly sustained appeals. The question was fully discussed by the Supreme Court of West Virginia in the case of Dryden v. Swinburn, 15 W. Va. 246. Many authorities are collected in that opinion, and no contrary authority has been referred to. In Boyd Co. v. Ross, 95 Ky. 167, 15 Ky. Law Rep. 520, 25 S. W. 8, 44 Am. St. Rep. 210, an appeal was taken from the county court to the circuit court from an order approving a sheriff’s bond, and from the circuit court it was brought to this court; this court taking jurisdiction and affirming the judgment of the circuit court, which had set aside the order of the county court. Certainly there is no distinction, so far as section 978 goes, between an order approving a sheriff’s bond and an order removing, a sheriff. If an appeal may be taken in one case because the amount in controversy is over $50, how can it be said that an appeal cannot be taken in the other, under the same statute? To say that the statute does not contemplate an appeal in such *380cases is to beg the whole question; for there is nothing in the statute except the general provision, and a provision that in certain other cases appeals may be taken from the orders of the county court without regard to amount. The sheriff’s sureties in his old bond continue bound, and, in order to appeal, he must execute a bond that he will perform the judgment of the court so there cannot possibly be any loss. The holding in the opinion that a circuit judge is bound by the opinion of a judge of this court where the facts are the same leads to some very peculiar conse. quences. If the circuit court does what he is required to do, his judgment cannot be reversed on appeal; for certainly it would not be held that a circuit court should do the vain thing of entering a judgment so that it might be reversed in the Court of Appeals. If the circuit court decides as he is bound to decide, his judgment is right and cannot be reversed by this court; but certainly the court does not mean that the opinion of one judge of this court would be binding upon this court, if the case, in the regular course of events, reaches this court. The rule has heretofore been that all decisions of the court on interlocutory motions were subject to be changed by the court in entering a final judgment. Thus it has been held that, if the court sustains or dissolves an injunction, he may, when he comes to enter his final judgment, disregard his order entered on the injunction, although made on a motion to dissolve the injunction on the whole case. The order of a judge of this court in dissolving an injunction granted by a circuit judge is of no more authority than a similar order made in the first place by the circuit court. The circuit judge may not in that action by an interlocutory order disregard the order of a judge of this court; but, when *381lie comes to enter Ms final judgment, this interlocutory order is no more binding on Mm than any other interlocutory order made in the case. See Matthews v. Rogers, 53 S. W. 413, 21 Ky. Law Rep. 905.
For these reasons, I dissent from the opinion of the. court.
Nunn and Settle, JJ., concur in this.dissent.