Petition for a rehearing.
Thayer, J.This court held, in this case, that in a trial of a civil action against a county for damages to an individual occasioned by an alleged neglect upon the part of the county, a tax-payer of the county was not qualified to sit as a juror, and indicated the opinion that either party to the action had the right to challenge a juror for cause upon that ground, but that where the challenge was interposed upon the part of the county, and overruled by the trial court, and the juror was afterwards challenged peremptorily upon the part of the county, it would be a waiver of the first challenge.
The counsel for the appellant have filed a petition for a rehearing, and in support thereof have cited a number of authorities, in which it has been held that a peremptory challenge made after a challenge for cause had been overruled by the trial court was not such waiver, where it was shown by the record that the party had exhausted his peremptory challenges before the panel was completed; which fact, they claim, is shown by the record in this case. ¥e have inspected the record, and find that, upon the trial of the cause in the court below, the respond*324ent challenged several jurors for implied bias, because they were tax-payers of the county. In each instance the court sustained the challenges, and excluded the jurors challenged from the panel. The appellant’s counsel then severally challenged three jurors for like cause, but the court refused to sustain these challenges, to which ruling an exception was taken; and said counsel then challenged each of said jurors peremptorily. These three challenges exhausted the appellant’s peremptory challenges before the jury was completed, but no further objection seems to have been made in filling the panel. Since the petition for a rehearing, we have made a further examination of the question, as to the effect of overruling a challenge for bias, where the party interposing it has subsequently challenged the juror peremptorily. The general rule upon the subject seems to be, that if the trial court erroneously refuses to allow a challenge, and the party making it then excludes the juror by a peremptory challenge, the error of the court is waived if a jury is obtained before the party against whom the error is committed has exhausted his peremptory challenges; otherwise the error is deemed material. (People v. Weil, 40 Cal. 268; Hubbard v. Rutlege, 57 Miss. 7; Hartnett v. State, 42 Ohio St. 568; State v. Brown, 15 Kan. 400; Iverson v. State, 52 Ala. 170; Bejarano v. State, 6 Tex. App. 265; Robinson v. Randall, 82 Ill. 521; Burt v. Panjaud, 99 U. S. 180; Benton v. State, 30 Ark. 328; State of Nevada v. Raymond, 11 Nev. 98.) In the latter case, a further qualification of the rule as to the error becoming material is made, and is to the effect that an injury could only arise where the challenging party was compelled to exhaust all his peremptory challenges, and afterwards was compelled to' have an objectionable juror placed on the panel for want of another challenge; and they all proceed upon the theory that the party will be presumed to have been injured by the ruling where he has been forced to exhaust all his peremptory challenges. And in all of them I believe the challenge for cause was on account of bias against the party interposing it, and the peremptory challenge was resorted to in order to exclude a juror in consequence of such bias; that the party had no alter*325native but to permit a juror, evidently prejudiced against him, and disqualified in consequence of such prejudice, to sit in the case, or to use one of the peremptory challenges to get rid of him. It may be well doubted whether the fact that the party challenging in such case exhausted all his peremptory challenges before the panel was filled, is sufficient of itself to authorize the inference that he has been injured in consequence of the erroneous ruling. The subsequent jurors in the case may have all been acceptable to him, and if he had had more peremptory challenges, would not have desired to use them.
The further test of the error having been prejudicial to him, required in the Nevada case, referred to above, seems to be reasonable. The court there held, that if a juror is challenged for cause, that challenge is overruled, and he is then challenged peremptorily. There does not necessarily arise any inference that the challenging party is thereby injured; and that is in harmony with all the other decisions cited. When, then, will it be inferred that he has been injured? Will it be when he has made all his peremptory challenges, or when he has been compelled to accept of an obnoxious juror in consequence of his having been compelled to exhaust them? The record in this case fails to show the existence of the latter alternative, or that any of the jurors were tax-payers of the county.
There is another feature in this case that, to my mind, has an important bearing. The ground of the appellant’s challenge for cause was for a particular disqualification of the juror. It was not because he Avas prejudiced or biased against the appellant, but because he had an interest in the event of the action, Avhich, under the wording of the statute, rendered him incompetent to sit. That interest, however, was of such a character as to incline the juror to favor the appellant, and the challenge for cause, therefore, was necessarily technical. The appellant was not compelled to resort to a peremptory challenge in order to exclude the juror for grounds for which he had been challenged for cause. There must have been an entire different reason from that for excluding him. His being a tax-payer of the county interested him in deciding in its favor, and the appel*326lant’s counsel certainly must have bad other reasons for objecting to his sitting. I have grave doubts as to whether the refusal to sustain such challenge for cause as the one under consideration would, in any event, be such an error as would justify the reversal of a judgment. It would be difficult to determine how the party in such a case could be injured by the error. It seems to me, at least, that where a challenge to a juror is made by a party for cause, which under no circumstances could be prejudicial to the party, and the challenge is interposed as a mere technical right under the statute, that the party must stand upon his strict right, and that if he take a subsequent step in the proceedings, and objects to the juror, evidently for other reasons, he should be deemed to have waived hi's right to insist upon the former objection. I attach very little importance to the claim that the appellant was compelled to exhaust all his peremptory challenges under any view of this case.
The challenges for cause, under the circumstances, were sought to be used as a kind of expedient — were employed as a sort of substitute for peremptory challenges, when the latter in strictness were the appropriate ones to be employed. The appellant’s counsel will not candidly claim that they desired any of the jurors that were drawn to be excluded simply because they were tax-payers of the county of Umatilla. If the grounds of the challenge for cause had been of such a nature as would have been likely to prejudice the juror against the appellant, and the latter had been put to its peremptory challenge in order to exclude him, there would be more reason for claiming that the error was prejudicial. But under the circumstances, as they exist, no such presumption can be drawn.
The petition for a rehearing will therefore be denied.