(dissenting). This writer must dissent. Disagreement with the majority opinion is founded on two bases: (1) MCLA 691.1407; MSA 3.996(107), which exempts governmental agencies from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function, does not apply under the facts and circumstances of this case, and (2), Const 1963, art 1, § 2 and US Const, Am XIV, guaranteeing all citizens equal protection of the laws, require the inclusion of a school playground within the meaning of a "public building” as used in MCLA 691.1406; MSA 3.996(106). A third possible ground, an outright nullification of the defense of governmental immunity, while very appealing to this writer, has unfortunately been foreclosed from consideration by innumerable prior cases acknowledging the validity of the doctrine. However, a brief discussion of this third ground might *781be instructive, and perhaps might lead to a complete reexamination of governmental immunity by the Supreme Court, a reexamination this writer feels would be helpful to the jurisprudence of the state. Therefore, the rationale behind the doctrine of governmental immunity will be briefly analyzed after discussing the substance of this dissent.
I
Though the doctrine of governmental immunity remains a valid defense to a charge of negligence levied against a governmental agent or agency, the doctrine is not applicable here. Contrary to the opinion of the majority, this writer believes that the statute under which governmental immunity is claimed is by its own language inapplicable to the facts of this case. MCLA 691.1407; MSA 3.996(107) reads:
"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed.”
The key words of the statute are "engaged in the exercise or discharge of a governmental function ” These are active words, denoting the actual operation of a governmental agency. The test for the existence of a governmental function was stated in Gunther v Cheboygan County Road Commissioners, 225 Mich 619, 621; 196 NW 386, 387 (1923):
" 'The underlying test is whether the act is for the common good of all without the element of special corporate benefit or pecuniary profit. If it is, there is no *782liability; if it is not, there may be liability. That it may be undertaken voluntarily and not under compulsion of statute is not of consequence.’ ” (Quoting from Bolster v City of Lawrence, 225 Mass 387; 114 NE 722; LRA 1917B, 1285.) (Emphasis supplied).
See, also, Daszkiewicz v Detroit Board of Education, 301 Mich 212; 3 NW2d 71 (1942). When the school district is not acting, that is, is not operating the school for educational purposes due to the official suspension of the school year for an extended vacation period, the school district is not "exercising or discharging” its governmental function of education. Under this view, plaintiff should be allowed to show that he was injured during a period when the educational function of the school district had been officially suspended by the appropriate school authority. If such proof is presented, the defendant should thereafter be precluded the use of governmental immunity as a defense. This writer recognizes that an abrogation of the doctrine of governmental immunity in this way may seem contrived. Perhaps a fictional elaboration of the facts of this case would allay such skepticism. Posit a situation where at the last school district meeting before summer vacation begins the Manistique school board decided to close permanently the school building outside of which the plaintiff received his injury. Were the building locked up in June, and plaintiff injured in July, would it not be reasonable to say that since the grounds had been officially abandoned in June, the school district was no longer engaged in the governmental function of education on the school grounds, and therefore governmental immunity was not a defense to an action in negligence brought by the plaintiffs? What if the school building and grounds were permanently closed in June, but the school district *783decided to reopen them at their meeting in September because a new replacement school was yet unfinished contrary to earlier expectations? Would it not be a contrived result to deny plaintiff recovery in one situation but not the other? And is it not equally contrived to deprive the injured plaintiff recovery under the facts of this case, assuming he was injured during an official vacation period?
II
The second ground for dissenting from the majority’s affirmation of the trial court’s decision is constitutionally based. Had plaintiff been injured on equipment permanently affixed inside the school building, the defendant could not have used the defense of governmental immunity because of MCLA 691.1406; MSA 3.996(106). That statute reads in pertinent part:
"Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition. Knowledge of the dangerous and defective condition of the public building and time to repair the same shall be conclusively presumed when such defect existed so as to be readily apparent to an ordinary observant person for a period of 90 days or longer before the injury took place.” (Emphasis supplied.)
Defects "of’ a building mean defects in equipment permanently affixed "in” the building, according to Green v Department of Corrections, 386 Mich 459; *784192 NW2d 491 (1971). The mere happenstance of plaintiff’s injury on playground equipment permanently affixed outside the building allowed the defendant herein to use the defense of governmental immunity, according to a literal definition of the word "building”. However, allowing a remedy to an injured victim of a defect in equipment permanently affixed in a public building while not allowing a remedy to an injured victim of a defect in identical equipment permanently affixed outside the public building but on public land is a distinction between classes of victims totally without rational foundation. Jones v Bouza, 7 Mich App 561; 152 NW2d 393 (1967), aff'd, 381 Mich 299; 160 NW2d 881 (1968); Weber v Aetna Casualty & Surety Co, 406 US 164; 92 S Ct 1400; 31 L Ed 2d 768 (1972). The school playground area to which the slide was permanently affixed is within the same power of control of school officials and the school maintenance staff as is the school building itself. Furthermore, the presumed rationale behind excluding public buildings from the blanket protection of the defense of governmental immunity, i.e., because public buildings, like public highways, are open to the public and used so often that the public has a right to expect to be safe when using them, applies equally to much-used playgrounds adjacent to public schools. The reasons enunciated in part III of this opinion that allegedly serve as a rationale for the continuing validity of the defense of governmental immunity simply do not bear a reasonable relationship to the classification of victims pursuant to the statutory scheme prescribed for governmental immunity. On its face, therefore, the immunity statute questioned here appears to be constitutionally infirm on equal protection grounds. Jones, supra; Weber, supra. However, whenever possible courts are bound to construe *785statutes so as to give them validity and reasonable operation, rather than hold them unconstitutional. Evans Products Co v State Board of Escheats, 307 Mich 506; 12 NW2d 448 (1943). Accordingly, in order to save the constitutionality of the statute this writer would expand the definition of "public building” in MCLA 691.1406; MSA 3.996(106) to include not only that which one normally regards as a building, but also the immediate outside physical environs owned, controlled, and considered a necessary part of the essential governmental function of the building. See contra, Cody v Southfield-Lathrup School District, 25 Mich App 33; 181 NW2d 81 (1970). Thus, school playgrounds would be part of "school buildings”, since there is little doubt that school playgrounds are essential to the governmental function of education for which a school building is used.
Therefore, on either the first or second ground enunciated above, this writer would reverse the order of the trial judge granting summary judgment to the defendant and allow plaintiffs to proceed with their suit.
Ill
Governmental immunity is derivative of the feudal idea that "the king can do no wrong”. Prosser, Torts (3d ed), § 125, p 996. Dean Prosser, in his brief historical analysis of the doctrine of governmental immunity, cogently expresses the anomaly of the doctrine within the American system of jurisprudence, supra, at p 997: "Just how this feudal and monarchistic doctrine ever got itself translated into the law of the new and belligerently democratic republic in America is today a bit hard to understand”. We are no longer a new republic, but still belligerently democratic *786about our principles, and governmental immunity makes less sense today than it ever has.
Governmental immunity is an affront to the principle that the American government was created for the people. It contradicts the democratic view of the nature of responsible governments:
" 'States or bodies politic are to be considered as moral persons, having a public will, capable and free to do right and wrong inasmuch as they are collections of individuals each of whom carries with him into the service of the community the same binding law of morality and religion which ought to control his conduct in private life.’ ” 1 Kent’s Comm 3. 18 McQuillin, Municipal Corporations (3d ed), § 53.01a, p 106.
Moreover, "Immunity fosters neglect and breeds irresponsibility, while liability promotes care and caution,” which care and caution is owed by the government to its people. Rabon v Rowan Memorial Hosp, Inc, 269 NC 1, 13; 152 SE2d 485, 493 (1967). Governmental immunity also violates the common law maxim that everyone shall have a remedy for an injury done to his person or property. See the discussion at 57 ALR 419; but cf. Firemen’s Ins Co of Newark, N J v Washburn County, 2 Wis 2d 214; 85 NW2d 840 (1957).
Governmental immunity is also a questionable doctrine from an equal protection standpoint. Const 1963, art 1, § 2; US Const, Am XIV. In Reich v State Highway Dept, 386 Mich 617; 194 NW2d 700 (1972), the Supreme Court of Michigan cited in a footnote Krause v Ohio, 28 Ohio App 2d 1; 274 NE2d 321 (1971), wherein Ohio’s doctrine of governmental immunity was held unconstitutional. Krause was eventually reversed in Krause v Ohio, 31 Ohio St 2d 132; 285 NE2d 736 (1972). The Ohio intermediate appellate court had argued that the distinction between persons who are injured by *787private persons and those injured by agents of the state and between those entitled to sue the state because of exceptions carved out by the Legislature and those not so entitled, is a classification which violates the equal protection clause of the fourteenth Amendment of the United States Constitution. The Court in Krause stated, at 28 Ohio App 2d 11; 274 NE2d 327:
"A distinction so based is capricious and represents no policy but an arbitrary attempt to lift state responsibility without reason. In such circumstances the permissible line between reasonable classification or a rational policy, and a denial of equal protection is crossed. This fatally offends the Constitution.”
This writer agrees with the basic principle upon which the Krause decision was rendered. Unfortunately, Krause represents a case with a particularly weak set of facts, since there the governor was- charged with negligently calling out the national guard during the Kent State University confrontation which resulted in the death of four Kent State students. Government officials, with important discretionary functions or duties, could not operate either efficiently or effectively if their discretionary acts were subject to suits on grounds of negligence or otherwise. Thus, while the Krause Court correctly noted that the general doctrine of governmental immunity violated equal protection guarantees, it overextended the principle to abrogate the special freedom from liability enjoyed by government officials when performing discretionary functions. This freedom is not derivative from the common-law doctrine of sovereign immunity, whose historical origin is in non-democratic governmental institutions, but rather is fundamental to the very character of our democratic institutions and elective positions, which are made re*788sponsive to the wishes and complaints of the people only through the ballot box. Hence, an abrogation of the doctrine of governmental immunity on equal protection grounds would not, contrary to the holding of the Krause Court, make the governor of Ohio subject to a negligence action for calling out the national guard, since his decision would clearly be a discretionary act. If the governor’s discretionary action were deemed reckless by the body politic because of its unfortunate results, the governor would need answer for his decision on election day. Contrariwise, the nullification of the doctrine of governmental immunity would allow suit against a school board for failing to see that school playground equipment was properly maintained, since such common maintenance supervision would not be a discretionary function of the school board.
It is notable, in passing, that the distinction that would preserve the defense of governmental immunity in the area of discretionary action by governmental officials has been made part of Federal law. 28 USC 1346(b) gives the Federal district court jurisdiction over tort suits against the Federal government, subject to the exceptions outlined in chapter 171 of 28 USC. 28 USC 2680(a) reads:
"The provisions of this chapter and section 1346(b) of this title shall not apply to—
"(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”
For recent cases interpreting this statutory distinc*789tion, see United States v Muniz, 374 US 150; 83 S Ct 1850; 10 L Ed 2d 805 (1963); Nelms v Laird, 442 F2d 1163 (CA 4, 1971), reversed on other grounds, 406 US 797; 92 S Ct 1899; 32 L Ed 2d 499 (1972); Spillway Marina, Inc v United States of America, 445 F2d 876 (CA 10, 1971). The Federal courts have had no difficulty in applying the discretionary function distinction on a case by case basis.
Of course, there are a number of arguments put forward as justification for the doctrine of governmental immunity: (1) it protects the state against nuisance suits; (2) it prevents the depletion of the tax fund; (3) it prevents the disruption of financial planning within the state government; and (4) it is a useful doctrine for "public policy” reasons. The availability of insurance at nominal public costs (compared to the expense an individual tort victim must bear when the state is the tortfeasor) undermines the continuing validity of the first three above reasons. In earlier days insurance was as rare as contact with the government, and this perhaps justified the use of governmental immunity as a defense. Insurance, public and private, is now a major part of modern life, as is daily contact with government employees and public property. Correspondingly, the rationale for governmental immunity as a defense has disappeared. The fourth argument made on behalf of the defense of governmental immunity, that of "public policy”, is answered curtly and persuasively by Prosser, supra, at 1001, 1004-1005:
"The immunity is said to rest upon public policy; the absurdity of a wrong committed by an entire people; the idea that whatever the state does must be lawful, which has replaced the king who can do no wrong; the very dubious theory that an agent of the state is always outside of the scope of his authority and employment *790when he commits any wrongful act; reluctance to divert public funds to compensate for private injuries; and the inconvenience and embarrassment which would descend upon the government if it should be subject to such liability. * * *
"Virtually all writers have agreed that no one of these reasons for denying liability is sound, and all of them can be found to have been rejected at one time or another in the decided cases. The current of criticism has been that it is better that the losses due to tortious conduct should fall upon the municipality rather than the injured individual, and that the torts of public employees are properly to be regarded, as in other cases of vicarious liability, as a cost of the administration of government, which should be distributed by taxes to the public.”
Despite this writer’s belief that the doctrine of governmental immunity has outlived its usefulness and has lost its rationale, if it is to be nullified nullification must come from either the Supreme Court or the Legislature. The judicial history of the doctrine in this state prevents this Court from acting on its own.