
    McBride, Treas., v. The White Motor Co.
    
      Taxation — Deductible credits — Section 5327, General Code — Federal income or excess profits taxes — Section 2, Article XII, Constitution — Supreme court — Judges equally divided — Affirmance of judgment.
    
    (No. 17460
    Decided December 12, 1922.)
    Error to the Court of Appeals of Cuyahoga county-
    
      Mr. John G. Price, attorney general; Mr. Ray Martin; Mr. Clarence; D. Laylin; Mr. Edward G. Blanton, prosecuting attorney, and Mr. Geo. G. Ham-sen, assistant prosecuting attorney, for plaintiff in error.
    
      Messrs. M. B. H. H. Johnson, for defendant in error.
   It is ordered and adjudged by this court, that the judgment of the said court of appeals be, and the same is hereby, affirmed. Three of the members of this court as at present constituted, for personal reasons, declined ¡to participate in the consideration or decision of this case. Two of the remaining members, Matthias and Robinson, JJ., are of the opinion that income taxes payable to the federal government do not constitute a debt in the sense that a taxpayer is entitled to deduct the same from credits under Section 5327, General Code, and that the judgment should therefore be reversed. Marshall, C. J., and Clark, J., are of the opinion that Section 5327, General Code, is unconstitutional and that no deduction of debts from credits is permissible under Section 2 of Article XII of the Constitution of the state of Ohio. It requiring six judges to declare a law unconstitutional under the circumstances of the present controversy and the unconstitutionality of the statute being by reason thereof not found in this cause, they are of the opinion that under a proper construction of Section 5327, General Code, such taxes do constitute a deductible debt and that the judgment of the court of appeals should be affirmed upon the authority of Exchange Bank of Columbus v. Hines, 3 Ohio St., 1. There being an insufficient number of judges concurring to reverse the judgment of the court of appeals same is hereby affirmed.

Judgment affirmed.

Marshall, C. J., and Clark, J., concur.

Matthias, J., dissents.

Hough, ‘Wanamaker and Jones, JJ., took no part in the consideration or decision of the case.  