DISCLAIMER - Not Legal Advice

This is not legal advice.

This is just something you found on the Web. This is not properly researched legal advice, and should not be regarded as such. The author is not a Virginia lawyer, and his only qualification is that he holds a Metro farecard. If you want legal advice, find a website which provides proper legal advice. One place to look would be a government agency website. If all you want is someone's personal opinion (not legal opinion) on a webpage you're already at the right place.

So if I called it proper legal advice, I'd be misleading.

The Washington Metro

One of the "upgrades" is the institution of mostly meaningless announcements:

"Please move to the center of the car." -- The center of the car is always the most crowded part of the car.   (Most locals know to move away from the center, but tourists obey these announcements as if they are intended to have meaning, with the resultant crowding of the center doors.)

"Please use all doors." -- WTF? I thought passengers naturally use all open doors. The vestibule doors are not used in Metro. Do passengers need an announcement not to use the unopened doors on the opposite side?

"You'll notice people [on the escalators] standing on the right." -- and what does that mean? That you advertise that patrons engage in dangerous practices? The posted signs say to stay away from the sides precisely because escalator balustrades (sideplates) are dangerous, and contradicts their own industry's safety notice. (The announcements should clearly state, "Please stand to the center of the escalators, away from the sides. Do not walk on an escalator.")

The obvious question is how the Metro subway system managed to obtain rulemaking authority and meet the administrative procedures of at least 6 jurisdictions. So I decided to look that one up.

The rule is valid in the District of Columbia, which does have such a law. At one time it was the law in two Maryland jurisdictions, but the State enablement statute had changed. In Virginia, it is totally bogus and always was bogus. (i.e., the ordinances were invalid on their face.)

To Metro's credit, they do announce the change in jurisdiction on their trains, but they don't publicise the reason for these announcements:

"Last station in the Commonwealth of Virginia."

The Dillon Rule

The Dillon Rule, more properly Dillon's Rule is named after an 1872 treatise on municipal corporations. The treatise states that municipal governments only have the powers that are expressly granted to them by the state legislature, those that are necessarily implied from that grant of power, and those that are essential and indispensable to the municipality's existence and functioning. Any ambiguities in the legislative grant of power should be resolved against the municipality so that its powers are narrowly construed.

Dillon's Rule was recognized by the US Supreme Court in 1891 (Merrill v. Monticello, 138 U.S. 673), and 1907 (Hunter v. Pittsburgh, 207 U.S. 161). More significant is Virginia's application of Dillon's Rule. The Commonwealth adapted Dillon Rule in 1896:

"It might sometimes be convenient and expedient for municipalities and the authorities of a county to possess such power, but it is a power that would be liable to great abuse. ... If the power has not been expressly granted, or is not necessarily implied, it does not exist." - City of Winchester v. Redmond, 93 Va. 711; 25 S.E. 1001 (Va. Sup. Ct. 1896)

"Virginia follows the Dillon Rule of strict construction which provides that municipal corporations possess and can exercise only those powers expressly granted by the General Assembly, those necessarily or fairly implied therefrom, and those that are essential and indispensable. " - City of Richmond v. Confrere Club of Richmond, 239 Va. 77; 387 S.E.2d 471 (Va. Sup. Ct. 1990)

The opposite approach to the Dillon Rule is "home rule", expressed under the "Cooley Doctrine". Under home rule, municipalities are entitled to pass laws and regulations unless preempted by the state or federal governments.

Metro "Rules"

Any municipal regulation or Metro self-declared regulation would violate Virginia's implementation of the Dillon Rule because there is no corresponding Commonwealth law supporting such a municipal regulation or self-declared regulation by Metro.

The Dillon's Rule provides that municipal corporations possess and can exercise only those powers expressly granted by the general assembly, those necessarily or fairly implied therefrom, and those that are essential and indispensable. If there is any reasonable doubt whether legislative power exists, that doubt must be resolved against the local governing body. Richmond v. Confrere Club of Richmond, Inc., 239 Va. 77, 79-80, 387 S.E.2d 471, 473, 6 Va. Law Rep. 1020 (1990). "The Dillon's Rule provides that municipal corporations possess and can exercise only those powers expressly granted by the General Assembly, those necessarily or fairly implied therefrom, and those that are essential and indispensable."

Consequentally, the counties and independent cities can enact ordinances (and WMATA can enact "rules"), but the ordinance must be enabled by the Commonwealth.

Metro's authority granted by the Commonwealth is limited to smoking regulations and a requirement for the payment of fares.

Practical Effects

While the District of Columbia must fully fund Metro subsidies through tax funds, Virginia can estimate coffee kiosk franchise values. Considering that most Virginia Metro stations have expansive interior space, this can be a considerable sum. While it is not necessary for Metro to actually lease kiosk space for an SBC, Starbucks or Peet's, the lease values can and should be included in local subsidies to Metro.

Establishing kiosks would also reduce trash, because patrons could be given economic incentives to use reusable containers. (They're "patrons"; not "customers". "Patrons" are treated with "respect"; not with the contempt sometimes applied to "customers".)

Note

Maryland at one time had an enabling law, but the Maryland legislature repealed the enabling law in 1999. It is not clear how that affects previously-enacted county regulations in Maryland. Metro announces when trains are entering and leaving the District on the Maryland side too, although it is unclear whether this relates to enforcement of the District's "eating and drinking on the subway" law.

Note that the District-Virginia boundary is the Virginia shoreline. If you are in the Roslynn tunnel or on the Metro Bridge, you are probably in the District of Columbia.

This may be obvious, but there is no point to challenging a police officer on this issue. It may be that a policeman can issue a lawful order to not drink coffee (or eat) on the subway, especially since the (invalid) statutes are still on the city and county books. Therefore the best response is, "I always respect the law." The best place to argue with a cop is in a courtroom or while having drinks with xem in a bar.

The same applies to a Metro employee, meaning it's probably best to stop eating and then tell xem there is no valid "rule".

update:

After the arrest of 12-year-old Ansche Hedgepeth on the Red Line in 2000, which generated cries of outrage around the world, WMATA has limited their enforcement of their "no eating and drinking" rule, even in D.C. In one Washington Post news report, 1200 tickets were issued during a 10-month period (presumably for consuming food or drink), but 97% were for alcohol violations. (58% in stations; 6% presumably in the trains or on buses, and 36% at bus stops.)

So if you're going to pop open a cold one (or a bottle of Thunderbird), pour it into a carry mug.

Virginia does have alcohol "open container" laws, which can be enforced on Metro.

Doesn't Coffee Attract Rats?

I had seen rats in a subway. This was in a full sized dumpster located beyond the the passenger platform (at the 42nd St. station of 8th Ave. line, if I recall). There were no rats near where passengers stood, and passengers would normally not notice anything. There may have been half consumed cups of coffee in that dumpster, but that coffee was probably cold. (Serving cold coffee is a misdemeanor in NYC anyway.)

I've also heard descriptions of rats running along a stormwater drain along the center of the tracks. I presume that the fact that a rat runs along a stormwater drain is not an indication the rat is looking for a cup of joe. I hadn't seen any scientific studies on this, so I could be wrong.

Considering that coffee being carried but not consumed is more likely to be spilled than coffee being sipped, even given latte-sipping rats, there would be less occurrence of spills if Metro encouraged drinking of coffee on the Metro.

This is even more bizarre when applied to water, which is the primary ingredient used to clean the subway, should Metro ever decide to do that.

The same can be applied to insects. While the District has some cockroaches capable of carrying a Metro card, they still have some difficulty with negotiating concrete platforms with no nesting areas, or with manœuvring train wheel bogies. Ordinary and routine cleaning would more than adequately address such issues.

CITATIONS

City of Winchester v. Redmond, 93 Va. 711; 25 S.E. 1001, (Va. Sup. Ct. 1896)

Commonwealth adapted Dillon Rule - "It might sometimes be convenient and expedient for municipalities and the authorities of a county to possess such power, but it is a power that would be liable to great abuse. ... If the power has not been expressly granted, or is not necessarily implied, it does not exist."

Arlington County, et al. V. Andrew White, 259 Va. 708; 528 S.E.2d 706 (Va. Sup. Ct. 2000)

"We stated in City of Chesapeake v. Gardner Enterprises, 253 Va. 243, 246, 482 S.E.2d 812, 814 (1997), that 'the Dillon Rule of strict construction controls our determination of the powers of local governing bodies. This rule provides that municipal corporations have only those powers that are expressly granted, those necessarily or fairly implied from expressly granted powers, and those that are essential and indispensable.' (further citations omitted)" id at 718-719.

City of Richmond v. Confrere Club of Richmond, 239 Va. 77; 387 S.E.2d 471 (Va. Sup. Ct. 1990) - affirmed Commonwealth follows the Dillon Rule of strict construction.

"Virginia follows the Dillon Rule of strict construction which provides that municipal corporations possess and can exercise only those powers expressly ... If there is any reasonable doubt whether legislative power exists, that doubt must be resolved against the local governing body. "

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Courtesy of Stan Protigal

first posted 11-May-08; rev 11-Sep-11 This page copyright 2008, Stan Protigal

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