The following opinion was filed March 5, 1929:
Rosenberry, J.The transaction by which the Board of Regents became invested with the title to the premises in *355question is attacked with great vigor on the grounds (1st) that the regents were without power to enter into the transaction; (2d) that the statute exempted neither the fee nor the term for years; (3d) that neither the plaintiffs nor 'the regents have any standing in equity to assert that any interest is tax exempt, it being alleged that the transaction was ineffectual and inoperative to accomplish a transfer of the title to the property or any interest therein.
The transaction may in its simplest terms be regarded as one in which plaintiffs have transferred to the Board of Re-. gents the title to certain lands, and have received back from the Board of Regents a lease for thirty years upon the conditions set forth, with the result that the Board of Regents will acquire a full and unincumbered title to the lands at the end of the thirty-year period in consideration of the exemption of the property from taxation during that period. There is no use of attempting to becloud the issue by stating it in dubious or doubtful terms or by involving it in legal mysteries.
When the assessor of the city of Madison came to place the taxable property of the city upon the assessment roll, he found the legal title to this property in the Board of Regents. We have been referred to no authority and a diligent search has failed to reveal any authority for the proposition that the taxing authorities of the city of Madison have any right to go behind this transaction and attempt either in a court of equity or elsewhere to have it declared void for the purpose of placing the property upon the tax roll. The state is not in its endeavor to assess and collect its revenues required at its peril to ascertain the true ownership of the property assessed as between private persons who may or might have claims thereto. Its tax claim against the property is the same whether it is assessed to the true owner or the ostensible owner ■ or to an unknown person, except only that where it is not assessed to the owner, no *356personal liability may accrue for the tax so assessed and levied. Whatever may be said of the transaction in question it is clearly not so void as to be a nudum pactum. The plaintiffs certainly had the power and authority to convey the land and the Board of Regents had power and authority to accept the conveyance. It cannot be denied that in a proper case the Board of Regents has power to make a valid and binding lease; nor can it be denied that the plaintiffs have the power and authority to enter into a lease. Therefore, until some one who has an interest in the property in question attacks the validity of the transaction it must stand as an accomplished fact.
What challenges one’s attention here is not so much the strictly legal aspects of the situation as the fact that the Board of Regents has exercised a power vested in it in an unexpected and unusual way. Whether it should, in exchange for the tax-exemption privilege, seek to acquire property as it has done in this case, is a matter of conscience for the Board of Regents. We are charged with no duty to scrutinize its conclusions, and certainly we cannot substitute our judgment for that of the board charged by the law with the duty and responsibility of making a decision. If the board acts within its powers and thereby accomplishes a purpose which should .not be accomplished in that manner, it is responsible to its creator, the legislature, and not to the courts.
We come now to a consideration of the taxability of the property as the title is presently vested. The exemption is claimed under the provisions of sec. 70.11, Stats.:
“The property in this section described is exempt from taxation, to wit:
“(1) That owned exclusively by the United States or by this state except lands contracted to be sold by the state. ...”
It is first urged that it was not within the statute because not exclusively owned. It is considered that this phrase *357‘ exclusively owned” refers to a joint ownership, such a relation as might exist between tenants in common. The state may be a co-owner of lands with other parties, in which event that interest owned exclusively by the state would be exempt, that not owned exclusively by the state would not be exempt. It is considered that it does not apply to an interest in land such as a leasehold. This is made quite clear by reference to other provisions of the statutes. The provision relating to religious, scientific, etc., associations is that the personal property owned shall be exempt “which is used exclusively for the purposes of the association.” It is use rather than ownership that determines the exemption. In the case of real property owned by such associations it shall be exempt if not leased, etc. In the case of the state and its agencies it is the title rather than the use which determines whether or not it is exempt. The provision of sub. (4) of sec. 70.11, “The occasional leasing of such buildings for schools, public lectures or concerts, or the leasing of such parsonages, shall not render them liable to taxation,” indicates that it was the legislative purpose to require the property of religious, scientific, etc., associations to be used exclusively for the purposes of the association. Sub. (S), relating to the property of county agricultural societies, provides: “Property owned and used exclusively,” etc. Here the title and the use must unite in order that the exemption may attach. If it was the legislative intent and purpose to exempt lands owned by the Board of Regents only when they were used exclusively for the purposes of the corporation, the statute would no doubt have so provided. Its omission in that connection is certainly very significant in view of other language employed in the statute.
Assuming as we must that in this case the transaction is valid, it not being challenged by any one having the right to challenge it, it must be held that the property in question is owned exclusively by the State or the Board of Regents on *358its behalf. To be sure, the plaintiffs own some rights or interests in the property which is owned by the Board of Regents. They may be said to own the use of the property. We shall not attempt to indulge in any metaphysical distinctions in this case as to the meaning of the word “ownership” for the reason that the legislative intent and purpose seems clear.
We are urged upon the authority of Merrill R. & L. Co. v. Merrill, 119 Wis. 249, 96 N. W. 686, to apply a very strict rule to the situation with which we are dealing. While it is an ordinary rule of law that statutes exempting property are to be strictly construed in favor of the state, we are of the opinion that when the exemption is in favor of the state itself, the reason for the rule fails.
But it is urged that the interest of the lessees is taxable in any event from whatever angle the transaction may be viewed. Sec. 70.08 provides:
“The terms Teal property,’ Teal estate’ and ‘land,’ when used in this title, shall include not only the land itself but all buildings and improvements thereon, including buildings on leased lands, and all fixtures and rights and privileges appertaining thereto, and also private railroads and bridges.”
Sec. 70.17 provides:
“Real property shall be entered in the name of the owner, if known to the assessor, otherwise to the occupant thereof if ascertainable, and otherwise without any name. . . . Real property held under lease from any religious, scientific, literary or benevolent association, but otherwise exempt, shall be assessed to the lessee. All buildings on lands under lease or permit, including buildings located on railroad right of way or on other lands not subject to local assessment, shall be assessed as real estate to the owners of such buildings. . 4 .”
Under the provisions of these statutes, throughout the *359history of the state lands have been assessed to the owner. No doubt the legislature might empower the assessor to assess the leasehold interest against the lessees and so divide up the property for the purposes of taxation. That, however, has never been the policy of our law so far as we know except for a brief period when the state undertook to tax the respective interests of the mortgagor and mortgagee separately. The entire property, including all interests in it, is assessed to the owner of the property as defined in the statute, and the right of every person claiming any interest in the property subordinate to the fee, 'whether under lease, contract, or otherwise, is extinguished if the property be sold in the exercise of the taxing power. If we were now to hold that the interest of a lessee under a lease should be separately assessed, how could it be held in other cases that where assessed to the owner the interest of the lessee could be cut off. If a lease creates a separable taxable interest in the lessee in one case it does in all cases. The fact that the fee is exempt in one case and not in another does not change the nature of the lessee’s interest. A holding to that effect would involve a complete reversal of the public policy of this state throughout its history, and if a change of that kind is to be brought about it should be done by legislative, action, not by a judicial holding made to fit a particular case.
The property in this case, if assessable at all, was assessable to the Board of Regents of Wisconsin because exclusively owned by the board. The board was the owner; all interests in the property are subordinate to its title. If in the hands of the board it is exempt, then it is wholly exempt. It is the property that is exempt, not the board. To tax the interest of the plaintiffs as lessees is to tax property owned by the Board of Regents, the use of which has been let to the plaintiffs, and is in direct violation of the statute, which exempts it from taxation.
*360By the Court. — Judgment reversed, and cause remanded with directions to the lower court to enter judgment granting the prayer of plaintiffs’ complaint.
The following opinion was filed March 11, 1929: