I dissent on the ground that as the opinion of Judge Morana shows, the appellant has neglected its duty to make a statement to the auditor of the affairs of the Board of Trade Company, upon which statement, if it had made it, taxes presumably would have been levied. Such taxes, it is inferable from the bill of the appellant, it, by contract with the Board of Trade Company, would have been bound to pay. True, a court of equity inflicts no penalties, but it will not relieve from them except upon equitable terms. Upon this stood 'the old law as to mortgages.

On a bill to foreclose, the mortgage debt only would be regarded; but ona bill to redeem, applying the principle that he who seeks equity must do equity, redemption would not be allowable upon payment of the mortgage debt only, but the mortgagor must also pay other debts owitig by him to the mortgagee. I do not go into details as to kind of debts and circumstances. 2 Greenleaf’s Cr. on Real Prop., side pages, 106-112; Scripture v. Johnson, 3 Conn. 211; Chase v. McDonald, 7 Har. & John. 160.

I think, therefore, the appellant is required to make a reasonable showing of what the burden upon it would have been if it had performed its duty, and offer to discharge that before it can ask a court of conscience for relief.

It was expressly determined by the Supreme Court in Western Union Telegraph Company v. Leib, 76 Ill. 172, that the Revenue Act of March 30, 1872, Chap. 120, R. S., confers no authority to assess or tax the capital stock and franchise of a foreign corporation doing business within this State.

After discussing and construing the various sections of the statutes relating to the subject, the court said :“fe are unable to find any authority in the act assessing the capital stock of companies and associations doing business in this State, but incorporated under the laws of another State. The care manifested by the Legislature, whenever any allusion is made to the assessment of capital stock, to limit it to corporations created by, or under the laws of this State, is so clear and positive, that no doubt can well exist as to the purpose intended. If it shall be thought necessary to tax such corporations otherwise than upon their tangible property, additional legislation expressly authorizing such taxation must be made.”

The allegations of the bill show that complainant was, during the year 1889, operating under a lease a telegraph line in the State of Illinois, owned by the Board of Trade Telegraph Company, a corporation organized under the laws of this State, and that complainant pays all taxes and assessments levied on the tangible property of said Board of Trade Telegraph Company, by the' various counties and towns in the State through which said line passes, and that complainant made no return of the capital stock and franchise of the said Board of Trade Telegraph Company for taxation for the year 1889, and no assessment upon, or valuation of such capital stock and franchise of said company was made by the board of equalization for the year 1889, and the auditor of public accounts did not certify the capital stock of said company to the county clerk of Cook county for taxation for said year.

Sec. 53 of the Revenue Act directs that, “Any person, company or corporation using or operating a telegraph line in the State, shall, annually, in the month of May, return to the auditor of public accounts a schedule or statement” of the amount of capital stock authorized, the amount paid up, the market or actual value, etc.

We are of opinion that it was the duty of complainant, as it was using and operating the, line of the Board of Trade Company, to return to the auditor the schedule or statement required by said section, and as it failed to do so, an assessment made on the capital stock and franchise of the said Board of Trade Telegraph Company, by the proper officers, might well authorize a tax which would be collectible from complainant

If, therefore, it appeared that the capital stock and franchise mentioned in Exhibit “A” was the capital stock of said Board of Trade Company, or if in fact it did not clearly appear from the context that it was not the capital stock of said corporation, we should be disposed to affirm the order of the Circuit Court denying the injunction. But in our opinion it clearly appears from said Exhibit “A” that the capital stock assessed was not that of the Board of Trade Company, but was the capital stock of the complainant corporation. Assessment on complainant’s own stock can not be sustained as a penalty for its failure to return the stock of the Board of Trade Company in accordance with the provisions of Sec. 53, supra. The assessment on the capital stock as it appears in the warrant is without authority of law. Courts should no doubt be astute to prevent corporate and other property from escaping its share of the burden of taxation, but are not warranted in going so far as to do violence to language to avoid the consequences of negligence on the part of the taxing authorities of the State or county.

The decree dismissing the bill must be reversed and the "case remanded with directions ■ to restrain the collection . of the sum of $268.25, portion of the tax in said warrant, being the amount of tax levied upon the capital stock and franchise of complainant for the year 1889. Decree reversed.