concurring in part and dissenting in part:
I agree with the majority, although my reasons are somewhat different, that the Court should not now modify the doctrine that the state government enjoys immunity from suit unless waived in particular instances. In my view, in light of the particular history of sovereign immunity in Maryland, any change ought to come from the General Assembly. On the other hand, I agree with the second part of Judge Cole’s dissenting opinion that we should abandon the governmental-proprietary test for determining the immunity of municipalities and counties from tort suit. This distinction has no rational basis in the operation of local government, leads to arbitrary results, and has been abandoned by most of the sister jurisdictions from which this Court borrowed it at a relatively late date. Instead, we should abrogate the governmental-proprietary distinction, and limit the governmental immunity from tort suits of counties and municipalities to those discretionary or policy-making decisions of the local governments. However, once the policy has been made to engage in a certain activity or function, counties and municipalities should be held liable, the same as private corporations, for the negligence of their employees in the performance of the activities. This would largely be a return to the holdings of this Court throughout most of its history, that counties and municipalities are generally liable when, in carrying out their operations, they negligently cause injuries.
I.
In many states of this country, the following historical pattern with regard to sovereign immunity was more or less *68typical: the question of the immunity of the state government from suit was initially dealt with by the courts; the State was accorded immunity by judicial decision; the state legislature did not act with respect to sovereign immunity generally despite many suggestions to this effect by the courts; and finally the courts themselves reexamined the doctrine, abrogating or modifying it in light of present-day experiences and beliefs. If this typical pattern had existed in Maryland, our refusal to reconsider the State’s immunity from suit could not be justified, as the majority opinion seems to do, simply by relying on the principle of stare decisis and “our desire to preserve the consistency and stability in this Court’s rulings.”
In many areas of the law, such as testamentary law, property law, or commercial law for example, people do plan and arrange their affairs for the future in reliance upon this Court’s prior rulings, and thus we should be quite reluctant to depart from the principle of stare decisis. However, in other areas of law this is not as true. In arranging their affairs, our citizens do not take into consideration whether they shall be able to recover if negligently injured by the State. If anything, people assume as a general matter that, if they are negligently injured or killed, there will likely be compensation from the tortfeasor.
As this Court has pointed out many times, and as Judge Cole points out in his dissenting opinion in the instant case, the common law is not a static thing; it can be modified by judicial decision; and on occasions it should be modified where present-day experiences and beliefs justify such action. In several instances, particularly in the tort and criminal areas of the law, this Court has changed or extended common law principles. E.g., Lewis v. State, 285 Md. 705, 404 A.2d 1073 (1979); Pope v. State, 284 Md. 309, 341-342, 396 A.2d 1054 (1979); Lusby v. Lusby, 283 Md. 334, 390 A.2d 77 (1978); Phipps v. General Motors Corp., 278 Md. 337, 363 A.2d 955 (1976); Lightfoot v. State, 278 Md. 231, 237-238, 360 A.2d 426 (1976); Shilkret v. Annapolis Emergency Hosp., 276 Md. 187, 349 A.2d 245 (1975).
Consequently, if the only reason for refusing to re-examine *69the merits of the sovereign immunity doctrine was the principle of stare decisis, I would consider such reason insufficient. However, as to the immunity from suit of the State of Maryland, there is a sound historical basis for us to continue treating this as a matter exclusively for the Legislature.
The typical pattern regarding the development of sovereign immunity in many other states, as previously outlined, did not occur in Maryland. Here, the question of the State’s immunity from suit was not initially dealt with by the courts, but was in the beginning taken up by the Legislature. Moreover, the Legislature in recent times has not refused to consider the matter; instead it has enacted comprehensive legislation dealing with it.
Long before the first mention of sovereign immunity in the reports of this Court, the General Assembly enacted a broad statute. By Ch. 53 of the Acts of 1786, it was provided that “any citizen of this State, having any claim against this State for money, may commence and prosecute his action at law for the same against this State as defendant____” The preamble to the statute reflects the legislative policy determination that “it is reasonable that some mode should be adopted to afford such individuals [having claims against the State] an opportunity of trying the justice of their claims at law.” The statute went on to set forth procedures for filing such actions, gave the right of jury trial, provided for defense of cases by the Attorney General, etc.
The General Assembly again turned its attention to suits against the State by Ch. 210 of the Acts of 1820, passed February 17, 1821, which broadly repealed the 1786 act. Recognizing that the repeal reflected the legislative intent that there should no longer be actions at law against the State, the 1821 statute provided that it should not be construed “to affect any suit now depending in any court
More recently, the legislative and executive branches of government again considered the State’s immunity from suit. In 1974, the General Assembly passed House Bill No. 5, designed to remove the defense of sovereign immunity in ex *70contractu actions. However, the Governor vetoed the bill on the grounds that the language was unclear, that it did not provide for making funds available to satisfy judgments, that certain defenses might not be allowed, and that, despite the use of the words “ex contractu, ” the language of the bill might also authorize some tort actions. The Governor requested that the matter be further studied. Veto Message of May 31, 1974, relating to House Bill 5, printed in Laws of Maryland 1974, pp. 3087-3089. After further study by a commission containing representatives of both the legislative and executive branches of government, and an interim report by the commission,1 the Legislature in 1976 passed and the Governor signed a' statute abrogating the State’s immunity from suit in contract actions but not tort actions. Ch. 450 of the Acts of 1976.2
In Maryland, therefore, the immunity of the state government from suit was not a judicially fashioned doctrine. It was not a matter ignored by the Legislature. Instead, it was taken up by the General Assembly both at an early date and very recently. Just three years ago, the Legislature made a policy determination that the State’s immunity should be abrogated in contract actions only. This Court should respect that policy determination. The immunity of the State from suit has consistently been a legislative matter in Maryland, and respect for a co-equal branch of government requires that it remain so.
II.
With respect to the immunity from suit of the counties and municipalities of Maryland, however, the circumstances are entirely different. Since counties and municipalities are instrumentalities of the State, created by the State to carry on some of the State’s governmental functions, logically there *71might seem to be little basis to distinguish them, for purposes of immunity from suit, from the State itself or other state agencies. Nevertheless, they have consistently been treated differently, and the immunity of the State has at no time been extended to the counties and municipalities of Maryland. Thus, counties and municipalities have never been given any degree of immunity from contract actions; instead, they have always been subject to suits for breach of contract. American Structures v. City of Balto., 278 Md. 356, 359-360, 364 A.2d 55 (1976), and cases there cited. As to tort actions, throughout most of Maryland’s history, counties and municipalities were generally held liable with respect to matters over which they had authority to control, either by statute or charter provision. Mayor & C.C. of Balto. v. Marriott, 9 Md. 160 (1856). See also, e.g., M. & C.C. of Balt. v. Bassett, 132 Md. 427, 429, 104 A. 39 (1918); Taylor v. M. & C.C. of Balt., 130 Md. 133, 99 A. 900 (1917); M. & C.C. of Hagerstown v. Crowl, 128 Md. 556, 559, 97 A. 544 (1916); Annapolis v. Stallings, 125 Md. 343, 345-347, 93 A. 974 (1915); City of Baltimore v. Merryman, 86 Md. 584, 39 A. 98 (1898); Hitchins Bros. v. Mayor, &c., of Frostburg, 68 Md. 100, 11 A. 826 (1887); Tyson v. Commissioners of Baltimore County, 28 Md. 510 (1868); Mayor & C. C. of Balto. v. Pendleton & Harlan, 15 Md. 12 (1860). In more recent times, this Court has granted tort immunity to counties and municipalities with regard to those matters which the Court categorizes as “governmental” but not those activities which the Court labels “proprietary” or “corporate.” E.g., Bradshaw v. Prince George’s County, 284 Md. 294, 300, 396 A.2d 255 (1979); Cox v. Anne Arundel County, 181 Md. 428, 431, 31 A.2d 179 (1943); Baltimore v. State, 173 Md. 267, 272, 195 A. 571 (1937); Gold v. Baltimore City, 137 Md. 335, 112 A. 588 (1921).
Unlike the “sovereign immunity” of the State itself, the “governmental-proprietary” test for determining the tort liability of the subdivisions has, to the best of my knowledge, never been endorsed or generally dealt with by the Legislature. Instead, its beginnings and continuance have been entirely a matter of judicial decision. Consequently, the reasons for deferring to the Legislature regarding the *72sovereign immunity of the State have no application to the governmental-proprietary standard for deciding local tort immunity.
Little space need be devoted to demonstrating the unsoundness of the governmental-proprietary distinction. It has been thoroughly done elsewhere. Although the majority opinion in the present case baldly asserts that the distinction was “developed over a period of years by decisions of this Court on a rational basis,” the majority fails to explain or set forth any such rational basis. In fact, the opinions of this Court have regularly pointed to the unsatisfactory and illogical nature of the governmental-proprietary test. E.g., E. Eyring Co. v. City of Baltimore, 253 Md. 380, 382, 252 A.2d 824 (1969); Cox v. Anne Arundel County, supra, 181 Md. at 431, 433; Baltimore v. State, supra, 173 Md. at 272; Baltimore v. State, 168 Md. 619, 624-625, 179 A. 169 (1935); Baltimore v. Eagers, 167 Md. 128, 136, 173 A. 56 (1934). I can think of no reason whatsoever why the operation of a park, swimming pool or camp should be deemed “governmental,” thereby relieving the City of liability for its negligence, whereas the construction and maintenance of public streets, bridges and sewers, or the removal of garbage, or the supplying of water to homes, should all be classified as “proprietary” with governmental liability for negligence. In light of the concern for the public health and the environment, the latter group of activities are just as important government functions as the former, if not more so. There simply is no rational basis for this classification of the operations of local government.
Virtually the only reason given in Maryland cases, including the majority opinion in this case, for the refusal to abandon or modify the governmental-proprietary test for determining the tort immunity of local governments, is the principal of stare decisis, or, as the Court put it in Cox v. Anne Arundel County, supra, 181 Md. at 433, “[i]n this State ... the distinction has been adhered to too long for it now to be judicially altered.” However,.at the time the Court uttered those words in Cox, the governmental-proprietary distinction for deciding tort liability had been consistently adhered to for a relatively short time, only about twenty years. An historical *73examination demonstrates that the governmental-proprietary test was adopted by this Court and regularly applied at a late date. As previously mentioned, throughout most of our history counties and municipalities were generally held liable in tort. The governmental-proprietary test for tort liability has no foundation in the reasoning of the earlier cases.
The first case in this Court dealing with the right to bring a tort action against a municipality or county, and the nature of the local government’s liability, was apparently Mayor & C.C. of Balto. v. Marriott, supra, 9 Md. 160.3 In that case, the plaintiff recovered damages from Baltimore City for an injury sustained because of the City’s negligence in not removing an accumulation of ice from a sidewalk. The City, on appeal to this Court, argued for something like a governmental-proprietary distinction, contending “that the city is responsible, like an individual, in all cases where she acts as the owner of property..., and the cases cited on the other side are all cases of this character. But those are different cases from the present, where the city is sovereign within its limits ....” 9 Md. at 164. Baltimore City relied upon opinions in other states taking the position that no tort action could be maintained against a municipal corporation, such as Riddle v. The Proprietors, 7 Mass. 169, 187 (1810), as well as upon the leading English case holding that a county is immune from suit for damages occasioned by the county’s failure to repair a bridge, Russell v. The Men of Devon, 2 D. & E. 667, 100 Eng. Rep. 359 (K.B. 1788). See 9 Md. at 164-165. The plaintiff, on the other hand, argued that a municipality was a corporation entitled to no portion of the State’s sovereign immunity. Id. at 166-167. This Court, in affirming the judgment for the plaintiff, flatly rejected the City’s arguments. The Court pointed out that the act incorporating Baltimore City gave the City authority “to prevent and remove nuisances, ” and that, therefore, the corporation of Baltimore was “upon the same footing which is held by individuals and private corporations.” Id. at 174. The Court *74held that the only difference between the City and a private individual, insofar as tort liability, was that the City’s duty was based upon statute whereas the common law placed duties upon individuals, but that the consequences for breach of duty were the same. Id. at 174-175. There is no suggestion in Marriott oí a governmental-proprietary test for deciding local government tort liability; instead, this Court’s reasoning in that case would be just as applicable to activities later deemed “governmental.”
A few years later, the principles set forth in Marriott were recognized in the context of a defective condition at a city market, Mayor & C.C. of Balto. v. Brannon, 14 Md. 227 (1859), although the Court found no liability on the facts of the case. The following year, in Mayor & C.C. of Balto. v. Pendleton & Harlan, 15 Md. 12 (1860), the Marriott holding was applied to the activity of leaving an open trench, for water pipes, to remain across the street, despite the City’s argument, based on out-of-state cases, that it was immune from suit because the function was “of a municipal or political character,” 15 Md. at 14. In Co. Comm’s of A. A. Co. v. Duckett, 20 Md. 468, 477 (1864), the Court, relying on Marriott, held Anne Arundel County'liable for the death of the plaintiff’s horse .caused by the county’s negligence in failing to repair a road. The Court in that case, expressly held that the leading English governmental immunity case, Russell v. The Men of Devon, supra, was inapplicable to counties in this State, 20 Md. at 479-480.
During the remainder of the nineteenth century and the early years of the twentieth century, the principles of the Marriott case were regularly applied to hold counties and municipalities liable in tort in a wide variety of situations. Thus, in Havre De Grace v. Fletcher, 112 Md. 562, 570, 77 A. 114 (1910), the Court observed, relying on Marriott, that “[tjhere is no difference between the liability of a municipal corporation with such a charter as the defendant has, and that of an individual.” And in Bembe v. Anne Arundel County, 94 Md. 321, 329, 51 A. 179 (1902), the Court stated that “municipal corporations h,ave no more right to create or maintain a public nuisance than a private individual has.... *75And the liability of the one, in such an instance, is similar to that of the other.” See also, e.g., Annapolis v. Stallings, supra, 125 Md. at 345-346; Richardson v. Co. Comm’rs. Kent Co., 120 Md. 153, 87 A. 747 (1913); Kurrle v. Baltimore City, 113 Md. 63, 77 A. 373 (1910); Thillman v. Baltimore City, 111 Md. 131, 73 A. 722 (1909); Baltimore City v. Walker, 98 Md. 637, 57 A. 4 (1904); Baltimore City v. Beck, 96 Md. 183, 53 A. 976 (1903); Keen v. Havre De Grace, 93 Md. 34, 48 A. 444 (1901); Hagerstown v. Klotz, 93 Md. 437, 49 A. 836 (1901); Guest v. Church Hill, 90 Md. 689, 45 A. 882 (1900); City of Baltimore v. Merryman, supra, 86 Md. 584; Cochrane v. Frostburg, 81 Md. 54, 31 A. 703 (1895); Kranz v. Mayor, &c., of Baltimore, 64 Md. 491, 2 A. 908 (1886); Taylor v. Mayor, &c., of Cumberland, 64 Md. 68, 20 A. 1027 (1885); County Commissioners of Prince George’s Co. v. Burgess, 61 Md. 29 (1883); Eyler v. County Comm’rs of Allegany County, 49 Md. 257 (1878); County Comm’rs of Balto. County v. Baker, 44 Md. 1 (1876); County Com’rs of Calvert Co. v. Gibson, 36 Md. 229 (1872). In none of these cases, and in none of the many similar cases during this period of which I am aware, was there any mention in the language of this Court of the governmental-proprietary test for determining immunity from tort suit.4
Of course, during this same period, tort liability was not imposed upon local governments in some situations. However, these holdings were not grounded upon a governmental-proprietary distinction; they were based upon entirely different considerations. For example, the City of Baltimore was held not to be liable for the negligence or breach of duty of Baltimore City policemen. These decisions were not based upon any theory that police activity was “governmental.” Rather, they were based upon the nature of the Baltimore City Police Department, being a state agency, with the City having no control over it. Taxicab Co. v. M. & C.C. of Baltimore, 118 Md. 359, 370, 84 A. 548 (1912); Sinclair v. Mayor, &c. of Baltimore, 59 Md. 592 (1883); Altvater v. The *76Mayor and City Council of Baltimore, 31 Md. 462 (1869). Similarly, in a situation where the control over roads was taken from the county commissioners, liability was not imposed upon the commissioners for injuries caused by defective roads, Baltimore County v. Wilson, 97 Md. 207, 54 A. 71 (1903). Local school boards were held immune from tort suit in Weddle v. School Commissioners, 94 Md. 334, 343-345, 51 A. 289 (1902), on grounds having nothing to do with the governmental-proprietary distinction.5
Significantly, the language of the early cases suggested the more logical distinction between discretionary or policy-making determinations on the one hand, for which local governments could not be sued, and the carrying out of governmental activities on the other hand, which, if not done with ordinary care, did result in liability for injuries. As explained in Mayor and Councilmen of Frostburg v. Hitchins Bros., 70 Md. 56, 66-67, 16 A. 380 (1889):
“The power under its charter to grade streets and build culverts and sewers, is a discretionary power, to be exercised by the city authorities whenever in their judgment the public good required it. For the non-exercise of such a power no action it is true will lie, but if they undertake to build a culvert or sewer for the purpose of carrying off the surface water and drainage, they are bound to exercise reasonable care in the execution of the work. And if by reason of the negligent construction of a sewer, the drainage instead of being able to flow through it, dams up at its mouth, and is discharged with destructive force upon the property of an adjacent owner, the corporation is answerable for the injury. It has no more right than an individual to collect surface water from its street into an artificial channel, and discharge it upon the property of another; nor has it any right to create or maintain a nuisance.”
See also Hitchins Bros. v. Mayor, &c., of Frostburg, supra, *7768 Md. at 109-110; Walter v. County Commissioners of Wicomico Co., 35 Md. 385, 394 (1872); Tyson v. Commissioners of Baltimore County, supra, 28 Md. at 527-528.
The first application of the governmental-proprietary test for local government tort liability by this Court, as far as I am aware, was in 1914, Wallace v. M. & C.C. of Baltimore, 123 Md. 638, 91 A. 687 (1914), with the Court relying entirely upon authority from other states and failing to cite a single earlier Maryland case. The test was next mentioned as a second alternate ground of decision in Gutowski v. M. & C. C. of Balto., 127 Md. 502, 507, 96 A. 630 (1916). However, the Court in Gutowski acknowledged that the test for local government tort liability applied in earlier Maryland opinions was “broad enough to include municipal duties generally, without reference to the distinction as to their corporate or governmental character.” 127 Md. at 508.6 The governmental-proprietary distinction was dealt with in a few other cases between 1916 and 1930.7 Nevertheless, even during this period, the great majority of this Court’s opinions involving tort suits against local governments made no mention of the governmental-proprietary distinction but applied the principles of Marriott and the other earlier cases.8 It was not until the 1930’s that this Court regularly began to apply the governmental-proprietary test for local government *78tort liability, often attempting to reinterpret the earlier cases in light of that test.9
In sum, the governmental-proprietary test for municipal and county tort liability is not only arbitrary, but it has not been embedded in the law of this State for a long period of time. Thus, to say that it “has been adhered to too long for it now to be judicially altered,” Cox v. Anne Arundel County, supra, 181 Md. at 433, is not valid.
Last month in Lewis v. State, supra, this Court took the position that the principle of criminal law, that an accessory could not be tried until the principal was convicted, was today unsound, despite the consistent adherence to that principle from the year 1276 until the present. We therefore abrogated a rule which the courts had followed for hundreds of years. Certainly we can likewise abrogate a judicially created standard for local government tort liability that courts in this State have adhered to for a relatively brief period if we are similarly convinced, as I am, that it is also unsound.
Judge Smith has authorized me to state that he concurs with the views expressed in Part I herein.
. Report Of The Governor’s Commission To Study Sovereign Immunity (November 1976), p. iv.
. The Act also provided that local governments could be sued for breaches of contract. However, since local governments in Maryland never did have immunity from suit in contract actions, American Structures v. City of Balto., 278 Md. 356, 359-360, 364 A.2d 55 (1976), and cases there set forth, this aspect of the 1976 statute did not reflect any policy change.
. Although there were tort suits against local governments prior to Marriott, e.g., Mayor and C.C. of Balto. v. Norman, 4 Md. 352 (1853), evidently no issue was raised concerning the immunity of local governments until Marriott.
. In Duckett, 20 Md. at 476, there is language in a quotation from another source which might suggest a governmental-proprietary standard. However, nothing said by this Court itself suggests any such test. Rather, this Court broadly defined the tort liability of local governments, id. at 477.
. Compare the opinion several years later in Gold v. Baltimore City, 137 Md. 335, 337, 112 A. 588 (1921), relying largely on out-of-state sources, and basing this immunity upon the governmental-proprietary test.
. The Court in Gutowski went on to state that in all of the earlier cases, the activity involved was in fact “proprietary,” 127 Md. at 508. This statement is accurate only if one defines “proprietary” as those activities involved in all of the suits against local governments prior to 1914. It is noteworthy that just a year earlier, in State v. Rich, 126 Md. 643, 645, 95 A. 956 (1915), the Court characterized the establishment and maintenance of highways as “the exercise of an important public function” which was “essentially a duty and prerogative of government.”
. Eg., Gold v. Baltimore City, 137 Md. 335, 112 A. 588 (1921); Apartment House Co. v. Baltimore, 131 Md. 523, 102 A. 920 (1917).
. Eg., Baltimore v. Poe, 161 Md. 334, 156 A. 888 (1931); County Commissioners v. Collins, 158 Md. 335, 148 A. 242 (1930); Kent County v. Pardee, 151 Md. 68, 134 A. 33 (1926); Wash., B. & A. R. Co. v. Cross, 142 Md. 500, 121 A. 374 (1923); Charles v. Baltimore, 138 Md. 523, 114 A. 565 (1921); Vannort v. Commrs. of Chestertown, 132 Md. 685, 104 A. 113 (1918); M. & C.C. of Balt. v. Bassett, 132 Md. 427, 104 A. 39 (1918); Taylor v. M. & C.C. of Balt., 130 Md. 133, 99 A. 900 (1917); Biggs v. M. & C.C. of Balt., 129 Md. 686, 99 A. 860 (1917); M. & C.C. of Hagerstown v. Crowl, 128 Md. 556, 97 A. 544 (1916); Annapolis v. Stallings, 125 Md. 343, 93 A. 974 (1915).
. E.g., Harford County v. Love, 173 Md. 429, 196 A. 122 (1988); Baltimore v. State, 173 Md. 267, 195 A. 571 (1937); Baltimore v. State, 168 Md. 619, 179 A. 169 (1935); Baltimore v. Eagers, 167 Md. 128, 173 A. 56 (1934); Wynkoop v. Hagerstown, 159 Md. 194, 150 A. 447 (1930).