(dissenting). In 1978, this Court ruled, in Parker v Highland Park, 404 Mich 183; 273 NW2d 413 (1978), that the operation of a general hospital was not a "governmental function” within the meaning of the governmental tort liability act.1
Six years later, in Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984), this Court ruled that the construction of a drain, operations of a juvenile-care facility by the Department of Social Services, operations of facilities for emotionally disturbed persons by the Department of Mental Health, operations of a school district, the issuance of dredging permits by the Department of Natural Resources, the police response to a disturbance, and operations of a 911 system, were governmental functions.2 In so ruling, this Court defined "governmental function” as *264"an activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law . . . .”3
In two of these cases, consolidated on appeal, it was held, after Ross was decided, that because the operation of a general hospital is an activity that the defendant governmental entities were authorized by law to engage in, they were, pursuant to Ross, immune from tort liability.4
After argument in this Court, the governmental tort liability act was amended by 1986 PA 175. There was added, for the first time, a definition of *265governmental function. Act 175 adopted the Ross definition of governmental function but stated that immunity from tort liability was not granted with respect to the ownership or operation of a hospital except a hospital owned by the Department of Mental Health or the Department of Corrections. The amendments are effective as to causes of action arising on and after July 1, 1986. The amendatory language, in pertinent part, is as follows:
Sec. 1. As used in this act:
* * *
(f) "Governmental function” is an activity which is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law.
Sec. 7.
(4) This act does not grant immunity to a governmental agency with respect to the ownership or operation of a hospital or county medical care facility or to the agents or employees of such hospital or county medical care facility. As used in this subsection:
(a) "County medical care facility” means that term as defined in section 20104 of the public health code, Act No. 368 of the Public Acts of 1978, being section 333.20104 of the Michigan Compiled Laws.
Ob) "Hospital” means a facility offering inpatient, overnight care, and services for observation, diagnosis, and active treatment of an individual with a medical, surgical, obstetric, chronic, or rehabilitative condition requiring the daily direction or supervision of a physician. The term does not include a hospital owned or operated by the department of mental health or a hospital operated by the department of corrections.
*266Section 2. This amendatory act shall take effect July 1, 1986.
Section 3. (1) Sections 1, 7, and 13 of Act No. 170 of the Public Acts of 1964, as amended by this amendatory act, being sections 691.1401, 691.1407, and 691.1413 of the Michigan Compiled Laws, shall not apply to causes of action which arise before July 1, 1986.[5] [Emphasis supplied.]
The Legislature thereby adopted, for causes of action arising on and after July 1, 1986, both the Ross definition of governmental function and the concept (expressed in Parker) that a governmental agency operating a general hospital was subject to tort liability and, as well, the concept (expressed in the companion case of Perry v Kalamazoo State Hospital, 404 Mich 205; 273 NW2d 421 [1978]), that a governmental agency operating a state mental hospital was not subject to tort liability.
Because Act 175 is not effective as to causes of action arising before July 1, 1986, this Court must decide whether to overrule Parker and, if so, whether to make such overruling effective before July 1, 1986.
The question is therefore whether a governmental agency operating a general hospital is subject to tort liability pursuant to Parker in respect to causes of action arising before the July 1, 1986, effective date of Act 175. We would hold that it is.
i
The question whether a governmental agency is immune from or subject to tort liability in respect to the operation of a hospital was not presented *267and therefore could not have been decided in Ross. We granted leave to appeal in these consolidated cases to decide whether the rationale developed in the Ross opinion should be extended to the operation of a hospital and Parker hence overruled.
Before this Court could decide that question, the Legislature indicated its general satisfaction with the results in Ross, Parker, and Perry; the Legislature adopted in Act 175 the Ross definition eliminating tort liability for all lawful governmental operations, but excepted, as set forth in Parker, the operation of a general hospital but not, as set forth in Perry, the operation of a state mental hospital.
The legislative adoption of the Ross definition of governmental function, and of the Parker/Perry distinction and qualification respecting general and state mental hospitals, were both made effective as to causes of action arising on and after July 1, 1986. The Legislature did not place its imprimatur on the Ross definition unmodified by the Parker/Perry distinction and qualification for causes of action arising before July 1, 1986.
We are obliged in construing legislation, in the instant case the governmental tort liability act, to search for and seek to implement the intent of the Legislature.
Where an amendment is enacted after controversy has arisen concerning the construction of an act, the amendment has, at times, been regarded by this Court as an expression of the legislative view of the original enactment — the purpose of the legislation being to clarify, because of the difference of opinion, the meaning of the original act rather than to work a substantive change of law. See Detroit Edison Co v Dep’t of Revenue, 320 Mich 506, 519-520; 31 NW2d 809 (1948). Such an amendment has been viewed as a legislative ex*268pression of the "true construction and meaning” rather than a change in law. See Bailey v Clark, 88 US (21 Wall) 284, 288; 22 L Ed 651 (1875).
Act 175 expresses the legislative judgment, and thus declared as the public policy of the state, that all lawful governmental operations shall be regarded as governmental functions immune from tort liability except, among others, the operation of a general hospital.
ii
In none of the nine cases decided in Ross was the service provided by government mainly provided in the private sector and largely funded in the same manner as like services provided in the private sector. Because Ross did not consider the factual situation presented in Parker, it cannot properly be said today that Parker was impliedly overruled by Ross.
When Ross was decided the Court, aware of Parker, left open the question of Parker’ s continued viability in recognition of the impropriety of deciding a question not before it. A question left open to be decided at a later date could not have been impliedly decided when Ross was decided.
To be sure, there are situations where, because the facts and context are essentially the same as those in an earlier case, the Court could not properly fail to apply a rule announced in the earlier case and, hence, there has been an implied overruling by the earlier case of any still earlier contrary decision.
This is not such a case. While the language of the Ross definition of governmental function in terms left no room for a distinction, what was said in Ross should, under long-established principles, be read in the context of what was then before the *269Court.6 Ross dealt with governmental operations and services that, while duplicated somewhat in the private sector, are mainly provided and funded by government and operations and services solely provided and funded by government.
What was said in Ross could not foreclose this Court from recognizing, when the issue was presented, the difference and distinction between one governmental activity and another — the difference and distinction between a governmental activity mainly provided and funded by government and a governmental activity mainly provided in the private sector funded by users without significant governmental subvention.
The opinion of the Court acknowledges that "[n]one of the nine consolidated cases decided in Ross involved the tort liability of a public general hospital . . . .”7 It nevertheless concludes that Ross impliedly overruled Parker because Ross rejected all the definitions proffered by the justices in Parker and because the definition stated in Ross "is broad and encompasses most of the activities undertaken by governmental agencies.”8 That explanation begs the question whether Ross impliedly overruled Parker by bootstrapping on the obiter dictum of Ross.
To the extent that the Ross definition embraced within its sweeping ambit "governmental” operations and services mainly provided in the private sector and mainly funded by user fees — to the extent it dealt with the question theretofore decided in Parker — it went beyond the ambit of what was before the Court for decision and beyond the appropriate exercise of judicial authority.
What the Court says in an opinion beyond what *270is necessary to decision is necessarily obiter dictum. It can be rejected in a later case, as Ross rejected all the definitions of governmental function proffered in Parker.
What the Court does in a particular case rather than what it says is more likely to stand the test of time. What the Court did in Ross was to hold that operations of schools, the Departments of Natural Resources and Mental Health, 911 and police department operations — operations without an equivalent counterpart in the private sector, operations largely funded by taxes — are governmental functions within the intendment of the governmental tort liability act. That is all the Court did or could properly do.
hi
The view that Ross impliedly overruled Parker presupposes either that (i) there is no meaningful difference between such tax-supported governmental operations as police and fire departments, public schools, state-operated mental institutions, and the Department of Natural Resources, on the one hand, and user-supported government operations of a general hospital, on the other, or that (ii) this Court is incapable of defining the term "governmental function” in a manner both consistent with what the Court decided (as distinguished from what it said) in Ross and, in recognition of the difference and distinction between such governmental operations, consistent with what was decided in Parker/Perry.
The Supreme Courts of Pennsylvania, North Carolina, Kansas, and Minnesota,9 along with this *271Court in Parker/Perry, differentiated between tax-supported governmental operations and the user-supported operations of a general hospital in holding that a general hospital is subject to tort liability.
Justice Moody recognized the difference and distinction in Parker/Perry. By his fourth vote, he implemented the difference and distinction for six years.
It is within the competence of this Court to recognize the difference and distinction and to say, for example, that it is beyond the policy and intent of the Legislature — in excepting from the general rule of tort liability the operations of government that constitute a "governmental function” — to except from the general rule of tort liability the governmental operation of a general hospital because such hospitals, in contradistinction from other governmental operations, generally provide services obtained by most of the state’s population in the private sector that are largely funded in the same manner as like services obtained in the private sector.
The Court might thus define (or redefine) "government function” for the period January 22, 1985 (the day Ross was announced), through June 30, 1986 (the day before Act 175 became effective), as any government activity, not ultra vires, other than a service mainly provided the state’s population in the private sector that is largely funded, where provided in the public sector, in the same manner and from the same sources as like services obtained in the private sector.
If this Court were in these consolidated cases to recognize the distinction between a general hospital and all other government operations, and to so *272define or redefine Ross, the result would be the same as that enacted in Act 175. The exception for services mainly provided by, and largely funded in the same manner as like services obtained in, the private sector would plainly, because of the context in which stated, mean general hospitals.10
IV
The legislative adoption of the Ross definition was no more than a convenient way of stating what could be said in another way with the same result. Act 175 does not imply that the Legislature viewed Ross as overruling Parker, and most importantly the enactment of Act 175 did not imply that the Legislature viewed Ross as correctly overruling Parker and a correct expression of legislative intent.
"By adopting this narrow exception to the broad immunity granted by Ross and codified by 1986 PA 175, it is clear”11 — not "that the Legislature believed that Ross had impliedly overruled Parker”12 —but that the Legislature believed that the Ross formulation was deficient and inconsistent with sound public policy insofar as general hospitals are concerned.
v
If one focuses on the effective date of July 1, 1986, one could argue, and correctly so, that the Legislature did not make the rules announced in Act 175 — the Ross definition modified by the Par*273ker/Perry distinction and qualification — effective before July 1, 1986. It does not follow that the Ross definition should, to the extent it is obiter dictum, be effective before July 1, 1986, or that Parker/Perry are overruled or superseded before July 1,1986.
This Court should not insist that its word formulation in Ross, rejected in this one application by the Legislature, must govern decision in this case. No grand design, plan, or symmetry would be offended by continuing the rule of Parker through July 1, 1986, the effective date of the new legislation.
The codification of the Ross definition effective July 1, 1986, as amended by the exception for general hospitals, means that the codification of the Ross definition as amended did not become effective until July 1, 1986. There is, to repeat, no implication from the July 1, 1986, effective date that the unamended Ross formulation is to be effective before July 1, 1986, or that it is codified and written in stone for the period of January 22, 1985, through June 30, 1986.
One can as readily argue that the application before July 1, 1986, of the Ross definition was rejected by the Legislature, as that the continued application of Parker through June 30, 1986, was rejected.
The question when, if at all, the obiter dictum of Ross becomes effective is a separate question which the Legislature left to the courts. This Court can readily justify delaying the effective date of the Ross dictum or modifying the dictum in recognition that it is dictum and the impolicy of creating a window of immunity by overruling Parker. There is nothing in the legislatively ordained July 1, 1986, effective date that militates for or against either result.
*274VI
Parker should not be overruled. The result of Parker is now the law for causes of action that arise on and after July 1, 1986. Parker has governed, since 1978, in hundreds, perhaps thousands, of lawsuits settled or tried on the basis of Parker. There are hundreds or perhaps thousands of cases pending in the courts where litigants and lawyers in reliance of Parker have expended considerable energy and large sums in cases awaiting trial. Partial settlements have been entered into and nonhospital defendants not named or released from liability in reliance on the rule of Parker in the expectation of a day in court against a governmental hospital defendant.
The argument that Parker was not precedentially binding because "no single definition had been adopted by a majority of this Court,”13 ignores both the reliance by bench and bar on the rule of Parker and that the Ross definition is not precedentially binding beyond what was before the Court in Ross and properly then decided. The argument that "the consolidation of nine factually diverse cases should have signaled to the bench and bar that this Court was reevaluating the definition of 'governmental function’ ”14 ignores that the Court could not properly reevaluate the definition of "governmental function” as applied to a general hospital because none of the nine factually diverse cases concerned the activities of a general hospital. The argument that litigants were warned by judicial dictum assumes that dictum is precedent. The argument that litigants were warned by the inability of four justices to agree on a rationale ignores the need, recognized in Tebo v *275Havlik, 418 Mich 350; 343 NW2d 181 (1984), and Gusler v Fairview Tubular Products, 412 Mich 270; 315 NW2d 388 (1981),15 of bench and bar to proceed in reliance on the last word from this Court until it speaks more decisively.
VII
Even if Ross impliedly overruled Parker it would not be consequential if it is not overruled effective before July 1, 1986. The same considerations of fairness that prompted this Court to delay the effective date of the new rules announced in Tebo and Gusler require, at least, that the effective date of any overruling of Parker be delayed until January 22, 1985, the day the Ross definition (together with the Ross obiter dictum) was announced.
VIII
The opinion of the Court states:
We hold that the rules articulated in Ross apply to all cases commenced after January 22, 1985, the date our opinion was issued, and to those cases pending either in trial or appellate courts on January 22, 1985, in which a governmental immunity issue was properly raised and preserved.[16]
Footnote 35 of the opinion states:
Unlike other claims of immunity, sovereign and *276governmental immunity are not affirmative defenses, but characteristics of government which prevent imposition of tort liability. [Citations omitted.]
It thus appears that a governmental hospital need not plead governmental immunity as an affirmative defense and that the failure to plead an affirmative defense would not be a failure to "preserve” the governmental immunity issue. Nevertheless, under the Court’s formulation, the issue must be "properly raised.” The opinion does not state whether this might have been done by motion for summary judgment, in the pretrial statement,17 or otherwise.
It appears, since the opinion of the Court speaks in the past tense — "was properly raised and preserved” (emphasis supplied) — that the governmental immunity issue must have been properly raised and preserved by January 22, 1985. If that is a correct reading, then if a motion for summary judgment were filed after January 22, 1985, it would be too late. And since the governmental immunity issue need not be raised as an affirmative defense, raising it by answer on or before January 22, 1985, might not be to "properly” "preserve” it.18 (At least those are some of the arguments one can foresee in the trial courts in the hundreds, perhaps thousands, of cases affected by what is said in today’s decision.)
If, as appears, the window of immunity announced by the Court today applies only to cases where motions for summary judgment were filed on or before January 22, 1985, the effect of the *277decision will indeed be less because there was no reason before this Court’s decision in Ross to file such a motion.
Parker thus is not overruled as to cases commenced on or before January 22, 1985, in which the defendant hospital failed to file a premature motion for summary judgment and, possibly, also is not overruled as to cases in which the defendant hospital filed a superfluous affirmative defense. If a case was filed on, say, January 15, 1985, Parker would probably govern because the defendant hospital’s answer was not due until after January 22, 1985. If, however, the defendant hospital filed a premature motion for summary judgment that was denied, Parker governs despite the expenditure of energy and money preparing the case for trial in reliance on that denial which presumably would have been predicated on Parker.
The Court has not adequately explained why it has reached such a peculiar result now that the Legislature has spoken and clearly said that the public policy of this state is that general hospitals are not immune from and rather are subject to tort liability.
Archer, J., concurred with Levin, J.MCL 691.1401; MSA 3.996(101).
1. Ross, supra, p 637. The Court posed the issue as involving "only the direct liability of a nonsovereign governmental agency [district and drain commissioner] for its negligence in contracting out, supervising, and inspecting the construction of a drain.”
2. Ross, supra, p 640 (Willis v Dep’t of Social Services). The Court said “[t]he question therefore is whether allowing decedent to participate in a swimming outing, and the care and supervision of decedent during the outing [with the juvenile care facility], constitute the exercise or discharge of a nonproprietary, governmental function.”
3. Ross, supra, pp 642-643 (Siener v Dep’t of Mental Health). "We must therefore determine whether the control and supervision of emotionally disturbed patients by [the Department of Mental Health in the Hawthorn Center] and their employees during a field trip is expressly or impliedly mandated or authorized by constitution, statute, or other law.”
4. Ross, supra, p 646 (Rocco v Dep’t of Mental Health). The Court said the crucial inquiry was "whether the placement of patients within a mental health facility, and the care, control, and supervision of in-patients, are activities which are expressly or impliedly mandated or authorized by constitution, statute, or other law.”
5. Ross, supra, p 649 (Regulski v Murphy). The Court said it was required to "determine whether the instruction and supervision of students enrolled in a building trades class, as well as the provision of *264safety devices and measures, constitute the exercise or discharge of a nonproprietary, governmental function.”
6. Ross, supra, p 653 (Trezzi v Detroit). The Court said: "We therefore must determine whether the categorizing of emergency calls by a 911 operator and the dispatch of police vehicles in accordance therewith are activities which are expressly or impliedly mandated or authorized by constitution, statute, or other law.”
7. Ross, supra, p 655 (Disappearing Lakes Ass’n v Dep’t of Natural Resources). The Court inquired "whether the issuance of dredging permits and extensions, and activities related thereto, are activities which are expressly or impliedly mandated or authorized by constitution, statute, or other law.”
8. Ross, supra, p 660 (Zavala v Zinser). "[W]e must determine whether [a police] officer’s decision to request and await backup assistance is expressly or impliedly mandated or authorized by constitution, statute, or other law.”
Ross, supra, p 620.
Faigenhaum v Oakland Medical Center, 143 Mich App 303; 373 NW2d 161 (1985).
In Powers v Peoples Community Hospital Authority, the circuit court concluded, on the basis of Boss, that the operation of a general hospital was a governmental function. This Court granted leave to appeal prior to decision of the Court of Appeals. 424 Mich 858 (1985).
In Hyde v Michigan (not officially reported), a divided Court of Appeals ruled that Parker v Highland Park, supra, did not apply because this Court had subsequently held in Murray v Beyer Memorial Hospital, 409 Mich 217, 221; 293 NW2d 341 (1980), that "the rule of Parker is to be applied to all cases pending on December 27, 1978, in which an express challenge to the defense of governmental immunity was made and preserved as well as all cases started after that date,” and, in the view of the majority, the plaintiff had not made and preserved an express challenge to the defense of governmental immunity. The Court’s disposition makes it unnecessary to express an opinion whether Hyde was correctly decided by the Court of Appeals.
1986 PA 175, amending MCL 691.1401 et seq.; MSA 3.996(101) et seq.
See Larzelere v Starkweather, 38 Mich 96, 100 (1878).
Ante, p 230.
Ante, p 243, quoting Ross, supra, p 621.
Flagiello v Pennsylvania Hospital, 417 Pa 486, 491-495; 208 A2d 193 (1965); Sides v Cabarrus Memorial Hospital, 287 NC 14, 18-19; 213 SE2d 297 (1975); Carroll v Kittle, 203 Kan 841; 457 P2d 21 (1969); *271Stein v Regents of the Univ of Minnesota, 282 NW2d 552 (Minn, 1979).
It does not appear whether any governmental entity other than the Department of Mental Health or Department of Corrections operates a psychiatric hospital.
Ante, pp 245-246.
Ante, p 246.
Ante, p 240.
Ante, p 240.
Considered in terms of the justification for reliance by bench and bar, and thus considered in terms of "fairness,” a decision of this Court, until reversed, whether or not four justices can agree on a rationale, should be regarded as at least as "clear and uncontradicted” (ante, p 240) as a decision of the Court of Appeals following which the sole action of this Court was to deny leave to appeal.
Ante, p 230.
The Court of Appeals concluded in Hyde that the judge’s statement in the pretrial statement did not "raise and preserve the challenge” absent plaintiffs’ amending their complaint. See n 4.
But see Scudder v Annapolis Hospital, 129 Mich App 280; 341 NW2d 504 (1983).