STATE EX REL. CITY OF HOLLYWOOD, A MUNICIPAL CORPORATION, PETITIONER,

v.

HONORABLE BILL GUNTER, AS INSURANCE COMMISSIONER AND TREASURER, STATE OF FLORIDA, RESPONDENT

PER CURIAM.

In original proceeding in mandamus the petitioner, City of Hollywood, has alleged that chapters 175 and 185, Florida Statutes, authorized petitioner to assess against in surers a tax on premium receipts collected on insurance policies issued each year insuring property located within the city of Hollywood; that petitioner has assessed the tax; that respondent insurance commissioner and treasurer of the State of Florida has paid the tax money collected for the 1976 calendar year into the insurance commissioner’s regulatory trust fund; that $139,-393.86 has been paid under chapter 175, Florida Statutes, and $173,631.51 has been paid under chapter 185, Florida Statutes, for deposit in the insurance commissioner’s regulatory trust fund; that the respondent has refused to issue certification to the state comptroller to remit warrants for the above sums of money in the regulatory trust fund. Petitioner seeks a writ of mandamus requiring the insurance commissioner and treasurer to issue this certification to the comptroller. An alternative writ, or order to show cause, was issued and the respondent has filed his response to the order to show cause.

After an examination of the pleadings, and having heard oral argument, the Court finds that the petitioner has shown a clear legal right to have the insurance commissioner and treasurer issue the certification. Petitioner has a clear legal right to a remittance of the tax money and respondent has a clear legal, ministerial duty to certify the remittance.

We therefore conclude that the response to the alternative writ does not present a defense to the prima facie case made by the petition for writ of mandamus and that a peremptory writ of mandamus should be issued. We withhold the issuance of a formal writ in full confidence that the insurance commissioner and treasurer will issue the necessary certification in accordance with the law as herein set forth.

It is so ordered.

ADKINS, BOYD, OVERTON and HATCHETT, JJ., concur. ENGLAND, C. J., dissents with an opinion.

SUNDBERG, J., dissents with an opinion, with which ENGLAND, C. J. and ALDERMAN, J., concur.

ENGLAND, Chief Justice,

dissenting.

I concur with Justice Sundberg that this Court’s authority does not extend beyond a directive requiring respondent to exercise his discretion by making a determination as to the City’s compliance or non-compliance with the applicable statutes. I would amplify that directive, however, to make clear that respondent may not, when exercising his discretion, take into account the declaratory proceeding now pending in which the validity of certain 1976 amendments to the City’s retirement plans for firemen and police officers is being challenged. Respondent has never been made a party to that suit and has, I believe, improperly withheld the exercise of his statutory responsibility to pass on the validity of the City’s plans pending the outcome of that litigation.

SUNDBERG, Justice,

dissenting.

I must respectfully dissent from the majority’s conclusion that a peremptory writ of mandamus should issue to the respondent requiring him to issue his certification to the Comptroller for payment of funds from the Insurance Commissioner’s Regulatory Trust Fund. I do not deem certification for payment by the Insurance Commissioner pursuant to the statutory scheme of chapters 175 and 185, Florida Statutes (1977), to be a ministerial act on his part which can be enforced through proceedings in mandamus. Certification of compliance is an act involving discretion or judgment on the part of the respondent.

Consequently, petitioner has no clear legal right and respondent has no clear legal duty to certify. Fasenmyer v. Wainwright, 230 So. 2d 129 (Fla.1969); State v. Cochran, 114 So. 2d 797 (Fla.1959); DeGroot v. Sheffield, 95 So. 2d 912 (Fla.1957); State v. Gamble, 339 So. 2d 694 (Fla.2d DCA 1976).

However, by the same token, respondent is statutorily obliged to make a determination of compliance of petitioner’s plans for the years in question. Chapters 175 and 185 impose a clear legal duty upon him to make such a determination. It is apparent to me that the Insurance Commissioner has failed and refused to make a determination of compliance or noncompliance. He may not lawfully refrain from performing this statutory duty. State v. Kanner, 152 Fla. 400, 11 So. 2d 889 (1943); State v, Cornelius, 100 Fla. 292, 129 So. 752 (1930); City of Coral Gables v. Sakolsky, 215 So. 2d 329 (Fla.3d DCA 1968).

Accordingly, I would cause to be issued a peremptory writ of mandamus directing the respondent to make a determination that the plans either do or do not comply with the requirements of chapters 175 and 185, Florida Statutes (1977). If he determines that the plans comply for the years in question, he must then issue his certification for payment. If he makes a determination that they do not comply, petitioner may seek appropriate review of that determination.

ENGLAND, C. J., and ALDERMAN, J., concur.