dissenting.
Unlike the majority, I believe that in the absence of voter approval the Taxpayer Bill of Rights Amendment to the Colorado Constitution bars the continuous tax rate increases mandated by section 39-29-106 of the revised statutes, and I therefore respectfully dissent. Because I also believe the majority fundamentally misconstrues the problem posed by the continued enforcement of such a statute, I write separately to briefly outline my views.
There can really be no question that TABOR bars increases in tax rates without advance voter approval or that changing the rate at which extracted coal is taxed from fifty-four cents per ton to seventy-six cents per ton is a tax rate increase. The term "rate" standing alone could of course be understood to apply to virtually any price or value, as in the going "rate" for something, but more typically it describes a ratio or relation between two things, like a charge, payment, or price fixed according to a ratio, scale, or standard. See generally Webster's *894Third International Dictionary 1884 (1976). In the context of taxes, it generally refers to a unit charge or ratio used by the government in assessing taxes. Id. In this case, however, there is little need or room to parse the fine points and variations of the term's meaning because the statute itself indicates what it means by the "tax rate." Subsection 39-29-106(1) sets the initial "rate of the tax" at "thirty-six cents per ton of coal" and subsection 89-29-106(5) mandates that "the tax rate provided in subsection (1) of this section shall be tnereased or decreased" at specified intervals to account for "change[s]l in the index of producers' prices for all commodities prepared by the bureau of labor." (emphasis added). The "tax rate" on extracted coal, as determined by the legislature itself, is therefore clearly the dollar amount per ton of coal for which each taxpayer is lable.
It simply strains credulity beyond the breaking point to assert, as does the majority, that raising the tax on every ton of extracted coal from fifty-four to seventy-six cents is not a tax rate increase, and instead that the tax rate contemplated by TABOR is the broader legislative prescription requiring periodic increases, in perpetuity, in the dollar amount assessed per ton of coal. As best I can understand it, the majority reasons that the department lacks the authority to increase the tax rate and therefore "the amount of the tax" is merely "adjusted" by the department according to the legislature's prescription; that the mechanism or formula for periodic increases is actually the "tax rate" to which TABOR refers; and that the limitations of TABOR do not apply to this statutory mechanism, or tax rate, at all because TABOR applies only prospectively and section 89-29-106 was enacted before TABOR became effective. Therefore, it concludes, unless the statute exceeds the constitutional authority of the legislature, the department is entitled, and in fact obligated, to continue to make upward adjustments in tax liability per ton of coal.
While many of the propositions of law advanced by the majority in support of this syllogism are not in themselves wrong, I consider them largely red herrings, which in no way resolve the legality of taxing extracted coal at more than the fifty-four cents per ton tax rate in existence on the date after which TABOR requires voter approval There has never been the remotest suggestion that TABOR applies retroactively to tax rate increases occurring before its adoption, and clearly no such rate increase is at issue in this case. The only increases at issue are increases over and above the tax rate in existence at the time TABOR was approved. And while I consider the majority's strenuous attempt to distinguish the "imposition" of a tax from its "implementation" as bordering on the hyper-technical, I fully agree that the department lacks the authority to alter the tax rate on extracted coal except as permitted by statute and that no statute purports to grant the department discretion in that regard. I strongly disagree, however, with any suggestion that the department is authorized, much less obligated, to continue to implement the tax rate increases prescribed by section 39-29-106 until that statute is proven beyond a reasonable doubt to have been unconstitutionally enacted. Instead, I believe the authority of the department, at least to the extent of fixing the tax due on extracted coal at more than fifty-four cents per ton without voter approval, turns on whether the statute granting it that authority was superseded, or repealed, by constitutional amendment.
Although repeal by implication is disfavored as a matter of statutory construction, Chism v. People, 80 P.3d 293, 295 (Colo.2003), even in the statutory context an earlier statute is held to be implicitly repealed by a later statute evidencing a clear and manifest intent to do so, People v. Burke, 185 Colo. 19, 521 P.2d 783 (1974). Similarly, we have found existing statutes to continue in force subsequent to the adoption of an amendment to the state constitution unless they are inconsistent with that constitutional amendment. See, eg., People ex rel. Union Trust Co. v. Superior Court, 175 Colo. 391, 488 P.2d 66 (1971). The general proposition that prohibitive and restrictive provisions in a constitutional amendment are self-executing and all statutes then existing or which may thereafter be passed inconsistent with such provisions are null and void, is too well-*895established to merit discussion. See Ladd & Tilton Bank v. Frawley, Cnty. Treasurer, 98 Or. 241, 198 P. 916 (1920) (citing authorities); see also Oakland Paving Co. v. Hilton, 69 Cal. 479, 11 P. 3 (1886) (although prospective, constitutional amendment annulled any statute then in force or which might thereafter be passed inconsistent with its provisions); of. United States v. Chambers, 291 U.S. 217, 54 S.Ct. 434, 78 L.Ed. 763 (1934) (National Prohibition Act not repealed by Congress but rendered inoperative by Twenty-First Amendment).
Not only is TABOR a constitutional provision to which legislative acts are subservient, rather than merely another statute itself, but its intent to limit the legislative taxing power by subjecting it directly to popular approval, see Bickel v. City of Boulder, 885 P.2d 215, 226 (Colo.1994), and to "supersede" all conflicting state statutes could not be more clear, see Colo. Const. Art. X, see. 20(1) ("All provisions are self-executing and severable and supersede conflicting state constitutional, state statutory, charter, or other state or local provisions."). Starting November 4, 1992, the state is expressly required to have voter approval in advance for any tax rate increase that does not fall within a TABOR exception. Colo. Const. Art. X, see. 20(4)(a). The language of TABOR simply does not admit of any construction permitting future tax rate increases without the constitutionally required voter approval, whether or not they were mandated by statutes enacted before the constitutional amendment, and this court has never suggested otherwise.
While the majority appears to acknowledge that TABOR certainly could supersede previously enacted legislative measures, see maj. op. at 891, it concludes that TABOR "did not repeal pre-existing statutes that include a tax rate provision for adjusting the amount of tax due." Id. at 891. Rather than . all tax rate increases actually imposed after November 4, 1992, the majority broadly concludes that "the voter-approval requirements of section 4(a) apply only to new taxes, tax rate increases, and tax policy changes adopted by legislative bodies after November 4, 1992." Id. at 891 (emphasis added). For this proposition, the majority relies largely on two prior decisions of this court, which do not even address, much less support, the majority's proposition.
The majority relies on Bickel v. City of Boulder, 885 P.2d at 226, for the proposition that TABOR provides a check only on the adoption of new tax legislation before it can go into effect. Maj. op. at 890. Bickel, however, did not speak to the question of new versus pre-existing tax legislation at all and, in fact, stands for virtually the opposite proposition. Rather than creating a new fundamental right in the citizens of the state, we held in Bickel that TABOR was intended as a "limitation on the power of the legislature." 885 P.2d at 226.
Similarly, in Bolt v. Arapahoe County School District No. Six, 898 P.2d 525 (Colo.1995), we in no way suggested that an existing statute prescribing tax rate increases to take effect periodically after November 4, 1992 does not conflict with TABOR simply because the implementing body lacks discretion in the matter. Rather, we held only that the mill levy at issue in that case was not subject to the voter-approval requirements of TABOR because it had actually been imposed and was already in existence prior to the adoption of TABOR. Largely because any further action required of the County Commissioners would be ministerial in nature, we found that the new mill levy was effectively imposed when the Board of Education adopted a budget including expenditures to be funded by it. Although even that holding was not beyond dispute, see id. at 540-42 (Seott, J., concurring in part and dissenting in part), it did not involve tax rate increases or the enactment of legislation at all, much less imply that a future tax rate increase must be considered to have been imposed for purposes of TABOR when the legislation mandating it was enacted.
In Bolt we therefore found that a mill levy already in existence on November 4, 1992 could not be a "mill levy above that for the prior year," within the contemplation of TABOR. Id. at 540. Not even the state suggests that a tax rate of seventy-six cents per ton was in existence on November 4, 1992. That tax rate clearly represents an increase over the rate of fifty-four cents per ton in *896effect on November 4, 1992, the date after which TABOR mandates voter approval for tax rate increases. While the holding of Bolt might arguably be extended to sanction a tax rate increase legislatively mandated to take effect before November 4, 1992, even though calculating the actual amount of the tax required some further ministerial action, it cannot support the proposition that statutes mandating future tax rate increases without approval are not in conflict with TABOR.
The only textual argument advanced by the majority for the proposition that TABOR applies "only to new taxes, tax rate increases, and tax policy changes adopted by legislative bodies after November 4, 1992," maj. op. at 891, is that TABOR's separate provision for the refund, in the absence of voter approval to do otherwise, of revenue from sources not excluded from fiscal year spending that exceeds TABOR's spending limits necessarily contemplates that "pre-existing tax statutes might operate to bring in increasing amounts of revenue." Id. at 890. At the risk of exposing my own inability to follow this reasoning, I note only that TABOR purports to limit spending and revenue quite apart from requiring voter approval of tax rate increases, and there are many sources of revenue apart from tax rate increases. To the extent the majority intends that the purpose of TABOR is only to protect citizens from "unwarranted" tax increases and that future tax rate increases enacted prior to November 4, 1992 are not "unwarranted," it simply ignores the express limitations of the amendment. I am aware of nothing in either the language or history of the amendment that can be construed to create an exception for future tax rate increases merely because they were ordered by legislative enactment occurring before TABOR was approved.
I fail to understand how statutes like seetion 39-29-106, prescribing periodic upward adjustments to existing tax rates, can be understood as anything other than a direct conflict with TABOR's mandate that starting November 4, 1992, the state must have voter approval in advance for any tax rate increase. Were it not sufficiently clear from general principles of constitutional construction alone, TABOR expressly indicates that it is self-executing and supersedes any conflicting provisions of state statutes. At least to my mind, there is simply no room to hold that section 89-29-106 continues to authorize the department to periodically increase, as it has done, the tax rate on extracted coal beyond the fifty-four cents per ton being levied on November 4, 1992.
I therefore respectfully dissent.
I am authorized to state that Justice EID joins in this dissent.