*515cThe following opinion was filed October 7, 1952.
Currie, J.(on rehearing). The court granted a rehearing in this case on the question of the constitutionality of that part of sec. 31.06 (3), Stats., quoted in the original opinion and referred to therein as the “county board law,” and had the benefit of hearing further oral argument on this issue and have been favored with further excellent briefs on both sides of the issue.
The first problem which presents itself in determining the constitutionality of the statute in question is the proper construction of sec. 22, art. IV of the Wisconsin constitution, which provides:
“The legislature may confer upon the boards of supervisors of the several counties of the state such powers of a local, legislative and administrative character as they shall from time to time prescribe.” (Emphasis supplied.)
Counsel for the company concede that the power attempted to be delegated to county boards by the “county board law” is legislative and not administrative.
Does the word “local” modify the words “legislative . . . character” or does the word “local” present an additional category of power that may be delegated by the legislature to county boards? We think it is clear that the word “local” does modify “legislative . . . character.” If it were to be held that “local” did not modify “legislative” there would be no limitation on the type of legislative power that might be delegated by the legislature to county boards, except as might be prohibited by other sections of the constitution. For example, under such construction, the legislature would be free to delegate such powers to county boards as that of regulating the transfer and descent of property, regulating .domestic relations, or providing for elections of county or state officials. We do not believe that it was the intention of the framers of our constitution that any of the afore-mentioned *515dtypes of legislative power might be delegated to county boards, but that instead they intended the word “local” should be a limitation upon the type of legislative power which might be delegated.
Counsel for the respondent company maintain that if the word “local” be construed by the court as limiting the type of legislative power which may be delegated to county boards, then such word must be construed in its territorial sense so as to authorize any delegation of legislative power to county boards which operates within the boundaries of the county. On the other hand, it is the position of counsel for the petitioner, and of the attorney general, that the word “local,” properly construed, includes only those matters which primarily affect the people of a locality, and stands in opposition to matters of state-wide concern which affect all the people of the state.
There seems to be almost a complete dearth of authority on this particular point. Counsel for the company submit that there are two states, New York and Michigan, which have provisions in their constitutions reading substantially as does sec. 22 of art. IV of the Wisconsin constitution, and that they are more akin to our own provision than that of the Kansas constitution. Apparently, there are no decisions of the Michigan supreme court on the point at issue. The New York court of appeals held in Smith v. Levinus (1853), 8 N. Y. 472, 474, that the legislative delegation of power to county boards “ ‘to provide for . . . the protection of shell and other fish within the waters of their respective counties’ ” was a valid delegation of legislative power under the provision of their constitution corresponding to our sec. 22 of art. IV, and declared that (p. 475) :
“. . . to make a law to regulate the fishing for oysters in Cow Bay, is to legislate for a locality. It is local legislation. It is of no consequence whether the people of the state *515eown the oysters in that locality or not. If they do, they have a right to preserve them.” (Emphasis supplied.)
The grounds stated by the New York court in Smith v. Levinus, supra, for upholding the delegation of power there presented, tends to support the position advanced by the company in the instant case. However, the same conclusion might have been reached by finding that, while the protection of fish and other aquatic life was a subject of both state and local concern, the interests of the locality were paramount as of the time when that case was decided ninety-nine years ago.
Regardless of how the New York court may have interpreted its constitutional provision corresponding to our sec. 22, art. IV, this court, as early as 1875, in its decision in Slinger v. Henneman (1875), 38 Wis. 504, determined that our legislature had no power to delegate to county boards the right to legislate on all matters of state-wide concern, even though the attempted delegated power was to be exercised only within the boundaries of the county. In that case the court had before it a statute, sec. 8 of which created a right of action to recover damages for injuries caused by dogs, irrespective of whether the owner had prior notice of vicious tendencies; and sec. 9 thereof authorized a county board to exempt its county from the operation of sec. 8. The printed brief of the appellant contended that sec. 9 of the statute was in direct conflict with sec. 22, art. IV of the constitution. While the court does not mention such section of the constitution in its opinion, it did declare as follows (p. 510) :
“Yet it is undoubtedly true that in matters purely local and municipal, the legislature may enact conditional laws, and refer it to the people or proper municipal authorities to decide whether such laws shall or shall not have force and effect in their respective municipalities. The cases which sustain this power are numerous. The State v. O’Neill, 24 Wis. 149, is one of these. In principle, the same power is exercised in the numerous laws enacted by the legislature *515fgiving to municipalities the power to establish by-laws and ordinances in respect to municipal matters. Sec. 8, however, does not relate to municipal affairs, but it seeks to change a rule of the common law pertaining to a matter of general interest. As well might the legislature authorize the board of supervisors of a county to abolish in such county days of grace on commercial paper, or to suspend the operation of the statute of limitations. Such legislation is clearly within the restriction on the power of the legislature to delegate its authority, and is therefore inoperative and void.”
After due consideration, it is our conclusion that the proper construction of the word “local ” as used in sec. 22, art. IV, Const., is that which we stated in the original opinion in this case as including only those matters which primarily affect the people of the locality, and stands in opposition to “matters of state-wide concern” which affect all the people of the state.
The brief amicus curiae filed hereih urges that such construction of this constitutional provision, if allowed to stand, could “create a chaotic condition in connection with the powers of county boards historically long exercised and woven into the fabric of county government.” The brief submitted by the respondent company, in support of its motion for rehearing, lists a large number of county activities authorized pursuant to statute, which activities involve some elements which are of state-wide concern. We believe that a further analysis of what is meant by a matter of state-wide concern, as opposed to one of local character, will allay at least some of the fears expressed by counsel.
As to some subjects of legislative action it is possible to say that they are exclusively of state-wide concern, while others may be fairly classified as entirely of local character, affecting only the interests of the people in a particular locality of the state. However, as to many subjects of legislative action it is not possible to fit them exclusively into one or the other of these two categories. The right to fish and hunt, or to enjoy scenic beauty, as an incident to the right to *515gnavigate the navigable waters of this state (which is the subject of legislative action in the instant case) is an example of a type of legislation which affects the interests of the people of the entire state, as well as those of a particular county. If a particular county is permitted to take action which will lead to the impairment or the destruction of hunting, or fishing, or the right to enjoy scenic beauty on that part of a particular navigable stream lying within the limits of a county, the interests of the people of the entire state may be adversely affected thereby. It would therefore seem that the test which ought to be applied in determining the validity of delegation of legislative power in such a case is that of paramount interest.
As pointed out in our original opinion, Wisconsin’s present Water Power Law dates from 1915, and such law required the Railroad Cbmmission (predecessor to the Public Service Commission), in granting a permit to construct a dam upon a navigable stream, to find that “the proposed dam will not materially obstruct existing navigation or violate other public rights.” The rights to hunt and fish were certainly included within the term “other public rights” because they had been recognized as rights incidental to navigation in decisions of this court rendered prior to 1915. In 1929, the legislature amended the Water Power Law so as to provide that “the enjoyment of natural scenic beauty is declared to be a public right” This probably was no more than legislative recognition of a previously existing public right which had always existed. Therefore, from 1915 until the enactment of the “county board law” in 1947, or for a period of thirty-two years, the Public Service Commission was required by statute to consider the effect on such public rights as hunting, fishing, and enjoyment of scenic beauty which would result from the erection of a proposed dam for which a permit was sought before the permit was issued, and counties were given no voice in such determination. This *515his strong evidence in support of the conclusion that these public rights in the navigable waters of our state were of paramount state-wide concern.
On the other hand, county boards, over a long period of years, may have legislated in certain fields, pursuant to state statutes delegating such power. In such instances, the historical background should be accorded considerable weight in determining whether a power so exercised by the counties over a long period might not primarily be one of local concern. In other words, the fact, that the counties have been permitted to exercise a certain delegated legislative power over a long period of years, is subject to the inference that the state has recognized that this is a field in which local interests are superior to those of the people of the state as a whole.
Decisions of this court arising under the “home-rule” amendment of our constitution (sec. 3, art. XI) throw considerable light upon the question of what subjects of legislative action are of primary state-wide concern, and which are not. Sec. 3, art. XI of the constitution, provides in part as follows:
“Cities and villages organized pursuant to state law are hereby empowered, to determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of state-wide concern as shall with uniformity affect every city or every village.” (Emphasis supplied.)
In the decision in Van Gilder v. Madison (1936), 222 Wis. 58, 267 N. W. 25, 268 N. W. 108, the question presented was whether, under the above-quoted provision of sec. 3, art. XI of the constitution, a city could, by adoption of a charter ordinance, remove itself from the operation of a state statute prohibiting cities from reducing policemen’s salaries unless the decrease were recommended by the board of police and fire commissioners. The court held that the *515icompensation of police officers of the city is a matter of “state-wide concern” and not a “local affair” within the meaning of the “home-rule” amendment. Therefore, the court determined that the part of the charter ordinance which attempted to remove the city from the operation of the statute relating to reduction of policemen’s pay to be invalid. However, the court clearly recognized that the problem of drawing the line was difficult for the reason that the functions of state and local governments necessarily overlap, and quoted with approval from the concurring opinion of Mr. Chief Judge Cardozo in Adler v. Deegan (1929), 251 N. Y. 467, 489, 167 N. E. 705, as follows:
“There are some affairs intimately connected with the exercise by the city of its corporate functions, which are city affairs only. Illustrations of these I have given, the laying oiit of parks, the building Of recreation piers, the institution of public concerts. Many more could be enumerated. Most important of all perhaps is the control of the locality over payments from the local purse. (Matter of Mayor, etc., of N. Y. [Elm street], 246 N. Y. 72, 158 N. E. 24.) There are other affairs exclusively those of the state, such as the law of domestic relations, of wills, of inheritance, of contracts, of crimes not essentially local (for example, larceny or forgery) , the organization of courts, the procedure therein. . . . A zone, however, exists where state and city concerns overlap and intermingle. The constitution and the statute will not be read as enjoining an impossible dichotomy.” (Emphasis supplied.)
The proper construction of the “home-rule” amendment also was before the court in the building-height case of State ex rel. Ekern v. Milwaukee (1926), 190 Wis. 633, 639, 209 N. W. 860. The court in its decision stated:
“In determining, as we now do, that the maximum height of buildings in a city is a local affair of such city and therefore within the field of legislative powers granted to cities and villages by such amendment, though such affair may also well be of ‘state-wide concern/ we recognize:
*515j“That there are still matters of ‘state-wide concern’ as to which no independent legislative power is thereby granted to municipalities. For instance, as already squarely held in State ex rel. Harbach v. Mayor, etc. 189 Wis. 84, 206 N. W. 210, they cannot control or enter into the field of school matters, a subject so carefully and separately safeguarded by art. X, Const. The same view was taken as to schools in Niehaus v. State, 111 Ohio St. 47, 54, 144 N. E. 433; there may also be many health regulations superior under general laws; so also exclusive control over methods and means of transportation, vested by general law in state administrative bodies (Vanderwerker v. Superior, 179 Wis. 638, 643, 192 N. W. 60; Scheible v. Hogan, 113 Ohio St. 83, 148 N. E. 581) ; and the same as to crimes (Buchanan v. State (Okla. Cr. App.), 236 Pac. 903), and possibly many other subjects which from their nature are state-wide and not local within a'proper construction of this amendment; but any such questions are not here presented or now decided.
“We also recognize that many matters while of ‘state-wide concern,’ affecting the people and state at large somewhat remotely and indirectly, yet at the same time affect the individual municipalities directly and intimately, can consistently be, and are, ‘local affairs’ of this amendment.”
There is no inconsistency in the different results reached by this court in State ex rel. Ekern v. Milwaukee and Van Gilder v. Madison. In both cases the court was confronted with a subject of legislation which partook both of the nature of a “local affair” and also that of “state-wide concern,” but in the former case it held that the matter was primarily a “local affair,” while the latter decision held that the “statewide concern” feature was paramount.
We have cited in our original opinion in this case a number of decisions of this court to the effect that the state holds', the navigable waters of this state in trust for the public, and | that such trust extends to the uses of such waters for fishing, ^ hunting, and other recreational purposes, as well as for pure 1 navigation. This raises the additional question of whether the state, as trustee, can lawfully delegate to an agency of the *515kstate, such as a county board, the power to determine that the Public Service Commission, in passing on the application for a permit to construct a dam, shall, or shall not, consider the effect that the construction of a proposed dam will have on public rights to the enjoyment of fishing, hunting, and scenic beauty in the stream.
Counsel for the respondent company contend that the trust extends only to rights of navigation and not to other public rights based on the recreational enjoyment of public waters such as fishing, hunting, and scenic beauty. In support of such contention we are cited to the following statement appearing in the decision in Krenz v. Nichols (1928), 197 Wis. 394, 402, 222 N. W. 300:
“While hunting and fishing may be an incident of navigation it does not depend on navigation, nor does navigation depend upon the privilege of hunting and fishing. They are distinct and independent of each other, and are drawn from different sources. Nor can it be reasonably said that hunting and fishing are in any way protected by the Ordinance of 1787 or the constitution of this state incorporating the same therein. The phrase ‘forever free’ refers to the ‘common highways’ and protects such highways from ‘any tax, duty, or impost therefor.’ ”
The point at issue in Krenz v. Nichols was the validity of a statute licensing muskrat farms, which statute it was contended made it unlawful for the public to trap muskrats in certain public waters as to which the license to operate a muskrat farm had been granted. The above-quoted statement in the opinion was unnecessary to support the conclusion reached that the statute was valid. If the state has power to prohibit trapping of muskrats in certain waters as a regulatory measure in the interests of conservation, it also has the power, in carrying out the same policy, of prohibiting the trapping of muskrats in waters embraced within an area to which a muskrat fur-farm license extends.
*515-1The early decisions of this court which promulgated the trust doctrine with respect to our navigable waters were grounded upon the wording of the Northwest Ordinance, as incorporated verbatim in sec. 1, art. IX of the Wisconsin constitution; and the statement quoted supra from the decision in Krenz v. Nichols, to the effect that neither hunting nor fishing were protected by the Northwest Ordinance, is probably historically true. However, as disclosed by the decisions cited in the original opinion in the instant case, and particularly in Diana Shooting Club v. Husting (1914), 156 Wis. 261, 271, 145 N. W. 816, the trust doctrine has been expanded to include fishing, hunting, and other public rights in the recreational enjoyment of the navigable waters of the state. Furthermore, in the Diana Shooting Club v. Husting Case it is expressly declared that the right of fishing and hunting are incident to the right to navigate. The trust doctrine has become so thoroughly embodied in the jurisprudence of this state that this court at this late date should not now repudiate the same, as it applies to rights of recreational enjoyment of our public waters, on the ground that the doctrine as so extended may be unsound from the standpoint of historical origin.
To justify such a repudiation of the trust doctrine would require a rather convincing showing that reasons of sound public policy demand it, but no such showing has been attempted. The fact, that in many of our navigable streams the recreational uses thereof far outweigh the use made of such streams for the purposes of navigation alone, strongly supports the premise that sound public policy requires the. retention of the trust doctrine as so expanded.
It is a well-recognized principle of the law of trusts that a trustee charged with the duty of administering a trust cannot delegate to agents powers vested in the trustee which involve an exercise of judgment and discretion, though the trustee may delegate powers which are purely ministerial. *515m54 Am. Jur., Trusts, p. 244, sec. 309. The county is an agency of the state and it may be urged that the foregoing principle, if applied literally to the trusteeship of the state over navigable waters would be too stringent. For example, sec. 30.02 (1), Stats., does vest powers in counties and other municipalities to establish shore and dock or pier lines in navigable waters, but a map showing the same must be filed with, and approved by, the Public Service Commission before such lines are legally effective. Thus the paramount interest of the state is safeguarded. Such a limited delegation of power consistent with the trust is very different in character from that attempted by the “county board law,” particularly inasmuch as the state retains the power to see that the trust is not vitiated. The delegation of power attempted in the “county board law” permits the “public right to the enjoyment of fishing, hunting, or natural scenic beauty” in a navigable stream to be seriously impaired or destroyed through action of a county board and the Public Service Commission action is rendered powerless thereby to intervene to protect these public rights. Such an attempted delegation of power by the legislature, involving as it does a complete abdication of the trust, is therefore void.
The “county board law” which we declared to be unconstitutional in our original opinion in this case, and to which conclusion we herein adhere, is contained in the last portion of sec. 31.06 (3), Stats., reading as follows:
. . but in case of a dam or flowage located outside the boundaries of a state park or state forest no permit shall be denied on the ground that the construction of such proposed dam will violate the public right to the enjoyment of fishing, hunting, or natural scenic beauty if the county board or boards of the county or counties in which the proposed dam and the flowage created thereby are located by a two-thirds vote approve the construction of such dam.”
As the above-quoted portion of sec. 31.06 (3), Stats., is only part of the amendment to such section embodied in *515nch. 124, Laws of 1947, the further question is presented whether the “county board law” portion of the statute is severable from the remainder of. that part of the statute embraced within such amendment wrought by the adoption of said ch. 124, Laws of 1947, so that the holding of the “county board law” unconstitutional would not invalidate any other portion of the statute.
Prior to the adoption of ch. 124, Laws of 1947, sec. 31.06 (3), Stats., had ever since the adoption of the 1929 amendment with respect to the enjoyment of scenic beauty, read as follows:
“At such hearing or any adjournment thereof the commission shall consider the application, and shall take evidence offered by the applicant and other persons in support thereof or in opposition thereto, may require the amendment of the application, and if it shall appear that the construction, operation, or maintenance of the proposed dam will not materially obstruct existing navigation or violate other public rights and will not endanger life, health, or property, the commission shall so find and a permit is hereby granted to the applicant. The enjoyment of natural scenic beauty is declared to be a public right, and if the commission shall find that the construction, operation, or maintenance of a proposed dam is contrary to the public interest, when the public right to the enjoyment of natural scenic beauty is considered, no permit shall issue." (Italics supplied.)
Ch. 124, Laws of 1947, struck out the italicized second sentence, and added all of the material now found in sec. 31.06 (3), Stats. 1951, except the first sentence retained from the former statute. The attorney general states in his brief that these added provisions, with the exception of the “county board law,” are but declaratory of the prior existing practice of the Public Service Commission in passing on applications for permits to build dams, under which practice the element of enjoyment of scenic beauty received due consideration; and such statement of the attorney general is not challenged *515-oby any of the other parties. If this be so, then the question of severability is of little practical importance, because if the “county board law” were held not to be severable then we would be compelled to hold all of ch. 124, Laws of 1947, invalid, which would leave sec. 31.06 (3) in the form in which it was prior to the adoption of said ch. 124. Under no circumstances could we arrive at a result whereby it would be held that all of ch. 124 was invalid, except that part which struck out the second sentence of sec. 31.06 (3), such being the sentence added by the 1929 amendment.
The test of severability which has been adopted by this court is well stated by Mr. Justice (later Chief Justice) Winslow, in Quiggle v. Herman (1907), 131 Wis. 379, 382, 111 N. W. 479, as follows:
“It is well understood that part of a statute may be unconstitutional and the remainder may still have effect, provided the two parts are distinct and separable and are not dependent upon each other. It is only where the void part of a statute was evidently designed as compensation for or an inducement to the otherwise valid portion, so that it must be presumed that the legislature would not have passed one portion without the other, that the whole statute must be held void. State ex rel. Walsh v. Dousman, 28 Wis. 541; Gilbert-Arnold L. Co. v. Superior, 91 Wis. 353, 64 N. W. 999.”
Under the foregoing test the “county board law” is clearly severable from the remaining portions of ch. 124, Laws of 1947. No portion of the remaining statute is dependent upon it, and it is distinct and separable from such other provisions. As the new provisions which the legislature inserted in lieu of the portion struck out (the stricken sentence being that which embraced the 1929 amendment) did not enlarge upon the consideration and weight which the commission was already according to scenic beauty in passing upon application to construct dams, it would be extremely difficult to arrive at a conclusion that the “county board law”' was *515pdesigned as a compensation for the enactment of this other portion of ch. 124.
We therefore hold that the “county board law” is severable from the remainder of sec. 31.06 (3), Stats., and its invalidity does not affect the validity of any other portion of said statute.
Sec. 370.001 (11), Stats., enacted by the 1951 legislature, provides as follows:
“Severability. The provisions of the statutes are severable. The provisions of any session law are severable. If any provision of the statutes or of a session law is invalid, or if the application of either to any person or circumstance is invalid, such invalidity shall not affect other provisions or applications which can be given effect without the invalid provision or application.”
It is urged that this statute is determinative of the issue of severability in the instant case. We prefer, however, to ground our conclusion as to severability upon the prior decisions of this court, rather than upon sec. 370.001 (11), Stats., because by so doing we avoid the necessity of determining such troublesome questions as whether such statute is retrospective in effect so as to apply to statutes enacted by prior legislatures, or whether it is, or is not, but declaratory of. the existing common law of the state.
There is one statement of the court made in the original opinion in this case which should be corrected. We therein stated (ante, p. 513) :
“The Public Service Commission in conducting hearings upon applications made under ch. 31, Stats., for the erection of a dam in a navigable stream, and making its findings on the issues presented, is acting in a judicial capacity.”
The commission, being an administrative agency and not a court, never acts in a strictly judicial capacity, and the italicized portion of the foregoing statement is amended to read “is acting in a quasi-judicial capacity.”
By the Court. — The previous mandate is affirmed.