dissenting.
The legislature, in adopting § 537.600, RSMo 1986, to reverse the holding in Jones v. State Highway Commission, 557 S.W.2d 225 (Mo. banc 1977), gave the courts no guidance as to the scope of sovereign immunity and made no attempt to extend the concept, but simply directed us to apply the doctrine as it existed on September 12, 1977, subject to the exceptions specified in *676the statute. We must determine, therefore, whether Bi-State Development Agency, in its surface transportation activities, enjoyed sovereign immunity prior to September 12, 1977.
One circumstance which hits us squarely between the eyes is that, in at least 15 cases decided on appeal prior to the effective date of § 537.600, Bi-State was the defendant in a personal injury suit arising out of its bus operations. Bi-State began bus operations in 1963. St. Louis Transit Company v. Division of Employment Security, 456 S.W.2d 334, 335 (Mo.1970). The first appeal of a damage suit seems to be Coulter v. Bi-State Development Agency, 434 S.W.2d 793 (Mo.App.1968). In no reported case was there even a suggestion of the possibility of sovereign immunity. It is patent, also, that many more suits must have been disposed of in the trial court, and many claims were settled without litigation.
On June 15, 1978, this Court handed down opinions in Myers v. Bi-State Development Agency, 567 S.W.2d 638 (Mo. banc 1978) and Nagel v. Bi-State Development Agency, 567 S.W.2d 644 (Mo. banc 1978) affirming plaintiffs’ verdicts in suits against Bi-State. These cases come after Jones, but before the effective date of § 537.600. By the express terms of Jones, such sovereign immunity as Bi-State enjoyed would still be applicable because of postponement of the effect of the Jones rule until August 15,1978. It is no answer to say that the question was never raised.1 The material inquiry for us is the state of the law as of September 12, 1977, and the general understanding at the time the legislature considered § 537.600 at its 1978 session. The legislature necessarily is aware of the prevailing legal climate.
A holding that Bi-State is liable in tort and does not enjoy sovereign immunity is consistent with legal principles then prevailing. The law of municipal corporations has long recognized a distinction between “governmental” operations, to which Sovereign immunity applies, and proprietary operations, to which it does not. Beiser v. Parkway School District, 589 S.W.2d 277 (Mo. banc 1979), expounding the familiar rule. The proprietary operations, generally, are those of a kind regularly carried on by private enterprise.2 The sense of the law is that the substitution of a public provider for a private one should not operate to the disadvantage of tort claimants.
Surface transportation, manifestly, is an activity appropriate to private business. Those injured by buses or trolley cars have traditionally had a remedy in damages. See Rider v. Julian, 365 Mo. 313, 282 S.W.2d 484 (1955). It was apparently assumed on all sides that the transfer of surface transportation operations in the greater St. Louis area from the prior operators to Bi-State did not deprive injured members of the public of the common law remedies previously available. Neither the agency nor its counsel apparently considered that it was immune. It must have built this assumption of liability into its forecasts and projections.
Cases such as Beiser v. Parkway School District, supra, holding that states, counties, and other governmental units are immune from liability even though their activities may be of a proprietary nature, do not control. These units historically have carried on functions which are governmental, and their assumption of operations of a proprietary nature is a relatively recent phenomenon, coming after established doctrines of immunity had been developed in the case law. Bi-State, by contrast, was a new animal. The courts were perfectly free to determine the nature of the beast and to decide on the basis of prevailing legal doctrine whether its operations should be the subject of sovereign immunity-
The case of St. Louis Transit Company v. Division of Employment Security, 456 S.W.2d 334 (Mo.1970), is of much more *677assistance than the principal opinion suggests; I agree that it does not rule the question of sovereign immunity directly. What it shows, however, is that we recognized that Bi-State was a new kind of agency, not readily fitted into existing concepts such as “political subdivision.” Inasmuch as its bus operations are distinctly proprietary, a holding that it had no sovereign immunity would be entirely in line with prevailing caselaw. Its operations were confined to urban areas and the well established law applicable to proprietary operations of municipal corporations is appropriate. The St. Louis Transit opinion states in so many words that Bi-State does not perform “governmental functions.”
I am confident that, had the point been argued prior to 1977, our courts would not have found Bi-State to be immune, by analogy to proprietary functions of municipal corporations. This is especially so because a holding of immunity would preclude any recovery whatsoever, in any amount. The allowance of a claim with limits of $100,000 per person and $800,000 came only in 1978, as a matter of legislative grace, in § 537.610.
Section 537.600 commands us not to extend the law of sovereign immunity. What it says is that any future modifications, or consideration of inequities or irrationalities, must come from the legislature and not from the courts. The legislature, however, has not given us any guidance as to the liability status of Bi-State, either before or after 1978. We are not forbidden to decide explicitly a question which seems to have been implicitly decided over a period of many years prior to 1977. That question should be decided on the basis of common law principles as understood in 1977 and the climate prevailing in the legal and governmental community at the time.
In Jones we postponed the effective date of abolition of sovereign immunity because of the expectation of the governmental units involved that they were not liable for tort damage. The legislature passed § 537.600 because of that same expectation. Bi-State’s expectations, however, were distinctly to the contrary. It fully expected that it would be liable for personal injury damage. The principal opinion gives Bi-State a bonanza it had no reason to expect.
The principal opinion apparently considers that our basic task is to determine whether Bi-State is a “public entity.” This approach is purely conceptualistic. The phrase, “public entity” is not a term of art. It was introduced to this area of jurisprudence by § 537.600, which neither defines nor enlarges the perimeters of sovereign immunity, leaving to the courts the traditional function of determining the common law. Our courts are perfectly capable of deciding what the common law is, or was at a point in time, even in the absence of decisional authority. See, Lambing v. Southland Corporation, 739 S.W.2d 717 (Mo. banc 1987).
It follows that the preliminary rule should be made absolute, so that the trial judge is prohibited from limiting the plaintiffs possible recovery to $100,000.
. Query whether the Court may be a party to the unauthorized award of funds of a public agency simply because the point of immunity is not raised by counsel.
. See Davis v. City of St. Louis, 612 S.W.2d 812 (Mo.App.1981)—street sweeper.