Does North Carolina's old swine-keeping ban around state institutions also keep hog farms a quarter-mile away from local public schools and churches?
Plain-English summary
Representative Cary Allred asked the AG to interpret N.C. Gen. Stat. § 143-153, an old (1909) statute that lets a majority of voters living within a quarter-mile of the administrative building of any "State educational or charitable institution" petition to make it unlawful for anyone to keep swine or swine pens within that quarter-mile radius. The penalty is a Class 3 misdemeanor with a $10 to $50 fine. Allred wanted to know whether the statute reached two specific kinds of buildings: local public schools and churches.
Chief Deputy AG Edwin Speas answered no to churches and likely no to local public schools.
On churches, the answer was straightforward. The statute's plain terms apply only to "State" institutions, meaning governmental entities. A church is not a "State" entity, no matter how educational or charitable it might be. The statute therefore offers no protection to churches against nearby hog operations.
On local public schools, the answer required some statutory archaeology. The statute was enacted in 1909 and codified as C.S. § 7527. In statutory construction, the AG explained, the words of a statute are read as they were understood at the time of enactment (citing State v. Emery). A companion statute from the same era, C.S. § 7442, listed the "State educational institutions" that were to receive direct legislative appropriations. That list included public colleges, universities, and statewide institutions like the State School for the Blind. Local public schools were not on the list.
The AG concluded that, in 1909, "State educational institution" most likely meant the specific public colleges, universities, and statewide institutions whose budgets came directly from the General Assembly. Local public schools were funded and governed differently and were not understood to be "State" institutions in the same sense. So the swine statute likely does not cover local public schools.
The AG noted an additional limitation that applies even when the statute does cover an institution: it protects only the "administrative buildings" of qualifying institutions, not every building on the campus. The quarter-mile radius runs from the administrative building.
The practical result in 2001: the swine statute is a narrow protection. It covers a small list of state institutions like the University of North Carolina campuses, state psychiatric hospitals, and similar statewide facilities. It does not give local public school boards a tool against nearby hog farms, and it does nothing for churches concerned about odor from neighboring agricultural operations. Communities looking for protection against industrial hog operations would have had to look elsewhere, most likely to county zoning, the state's nuisance statutes, or the 1990s framework for swine farm permitting under the environmental statutes.
Currency note
This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. North Carolina has reworked its swine-farm regulatory framework many times since 2001, including moratoria on new lagoon-and-sprayfield operations, Smithfield Agreement litigation, and the 2017 farm nuisance statute revisions. Anyone with a current hog-farm proximity question should consult current statutes (including current § 143-153, Chapter 106 livestock-farm provisions, and Chapter 153A/160A local-government nuisance authority) and recent court decisions.
Background and statutory framework
The 1909 statute. Section 143-153 was enacted in 1909 (originally C.S. § 7527, recodified in subsequent reorganizations). It addresses a 1909 problem: rural areas around state institutions sometimes had unregulated hog operations that produced significant odor and disease risk close to schools and asylums. The statute provided a community-petition mechanism: if a majority of voters within a quarter-mile of the institution's administrative building signed a petition, keeping swine within that quarter-mile became unlawful.
The "State educational or charitable institution" gating term. The statute does not protect every educational or charitable building. It protects only those that qualify as "State" institutions. In the 1909 statutory vocabulary, "State" was a governance label, not just a geographic one. A state institution was an institution chartered and funded by the State of North Carolina and managed by state-appointed officials or boards. Churches, even charitable ones, were not state institutions.
Why local public schools probably do not qualify. Local public schools occupy an unusual status in North Carolina law. Sometimes they are treated as state institutions; sometimes as local-government institutions. The AG pointed to two contrasts within Chapter 143 itself. Section 143-128 et seq. treats public schools as state institutions for state-construction-contract purposes. Section 143-300.2 et seq. treats public school employees as not generally covered by the Defense of State Employees Act. The treatment depends on which statute you read.
For the swine statute, the AG looked at the closest contemporary text. C.S. § 7442 listed the "State educational institutions" receiving direct legislative appropriation in 1909. The list included state colleges, universities, and statewide institutions like the State School for the Blind. Local public schools were not on the list. That contemporary list was the AG's best evidence of what the 1909 legislators meant by "State educational institution" in C.S. § 7527.
The companion-statute interpretation method. The AG used a familiar tool: when two statutes from the same era use the same term, the contemporaneous use in one statute illuminates the meaning of the term in the other. C.S. § 7442 (which used "State educational institutions" as a budget category) and C.S. § 7527 (which used the same phrase as the trigger for a swine-keeping prohibition) were enacted close in time and probably understood the same way. Both were drafted in a legal culture that distinguished sharply between "State" institutions, "county" institutions, and "local" institutions.
The "administrative building" limit. Even when an institution qualifies, the quarter-mile radius runs from the administrative building, not from every campus boundary or every facility. A large state institution with scattered facilities would receive protection only around the headquarters building. The radius is small (¼ mile, roughly 1,320 feet) and the penalty is modest (Class 3 misdemeanor; $10 to $50 fine).
Why the statute matters less than it sounds. A 1909 statute aimed at small hog operations near state asylums and colleges does not translate well to industrial-scale hog operations of the late twentieth century. By 2001 most of the legal action on hog operations came through environmental permitting (CAFO general permits, lagoon-and-sprayfield moratoria, Smithfield Agreement) and through county-level land-use authority where granted by the General Assembly. The swine statute remained a curiosity, but the AG was clear about its scope: small, geographically narrow, and only for state institutions of the 1909 kind.
Common questions
Q: Can a community use § 143-153 against an industrial hog operation near a local public school?
A: Probably not, under the 2001 AG reading. Local public schools were not understood to be "State educational institutions" in 1909, so the statute does not give the school's neighbors the petition mechanism it gives neighbors of state colleges and statewide institutions.
Q: What about a private religious college?
A: No. The statute reaches only "State" institutions. A private religious college, however charitable or educational, is not a state institution and gets no protection.
Q: What about charter schools?
A: Charter schools did not exist in 1909, and the opinion does not address them directly. Charter schools occupy an ambiguous space in North Carolina law (public funding, private nonprofit operation). Anyone looking at this question today would have to apply the 1909 statute through modern statutory definitions, which the AG did not do here.
Q: What is the radius and what triggers the prohibition?
A: The radius is one-quarter of a mile from the administrative building. The trigger is a petition signed by a majority of legal voters living within that quarter-mile. After the petition, keeping swine or swine pens within the radius is unlawful. The penalty is a Class 3 misdemeanor with a fine of $10 to $50.
Q: Does this statute pre-empt local zoning?
A: The opinion did not address pre-emption. Section 143-153 is a criminal statute; counties and cities with land-use authority over hog operations could regulate them separately. North Carolina's so-called right-to-farm statute and the various swine-farm-specific permitting provisions enacted in the 1990s also constrain how local governments may treat hog operations.
Citations from the opinion
- N.C. Gen. Stat. § 143-153
- N.C. Gen. Stat. §§ 143-128 et seq.
- N.C. Gen. Stat. §§ 143-300.2 et seq.
- C.S. § 7527 (1909 codification of § 143-153)
- C.S. § 7442 (companion 1909 statute listing State educational institutions)
- State v. Emery, 224 N.C. 581, 31 S.E.2d 858 (1944) (statute interpreted as understood at the time of its enactment)
Source
Original opinion text
§ 143-153. Keeping swine near State institutions; penalty.
On the petition of a majority of the legal voters living within a radius of one quarter of a mile of the administrative building of any State educational or charitable institution, it shall be unlawful for any person to keep swine or swine pens within such radius of one quarter of a mile. Any person violating this section shall be guilty of a Class 3 misdemeanor and shall be subject to only a fine of not less than ten dollars ($10.00) nor more than fifty dollars ($50.00). (1909, c. 706; C.S., s. 7527; 1993, c. 539, s. 1015; 1994, Ex. Sess., c. 14, s. 62; c. 24, s. 14(c).)
Your specific questions are: (1) whether a public school is a "State educational institution" within the meaning of N.C.G.S. § 143-153 and (2) whether a church is a "State educational or charitable institution" within the meaning of that statute.
N.C.G.S. § 143-153 was enacted in 1909 but there are no reported cases construing its terms. There is, however, no ambiguity in the statute with respect to its application to churches. By its plain terms, it does not apply to protect any church or other non-governmental organization; its coverage is limited entirely to governmental entities, i.e., to "State" entities.
The scope of the statute's coverage of governmental entities is much less clear. Chapter 143 of the General Statutes generally applies to state agencies and institutions. For purposes of Chapter 143, local public schools are sometimes treated as state institutions and sometimes not. Compare: N.C.G.S. §§ 143-128 et seq. (public schools covered by state construction contract procedures) and N.C.G.S. §§ 143-300.2 et seq. (public school employees generally not covered by Defense of State Employees Act). In this instance it appears likely that the General Assembly did not intend the phrase "State educational institution" to encompass local public schools. Ordinarily, "a statute is to be interpreted as it was intended to be understood at the time of its enactment." State v. Emery, 224 N.C. 581, 585, 31 S.E.2d 858 (1944). When N.C.G.S. § 143-153 was first enacted in 1909 it was codified as C.S. § 7527. While neither C.S. § 7527 nor any other statute expressly defined the term "State educational institution," a companion statute, C.S. § 7442, did list the "State educational institutions" which were to receive direct legislative appropriations. The institutions listed were public colleges and universities or state-wide institutions like the State School for the Blind. Local public schools were not included. For this reason, we conclude that the General Assembly likely did not intend the phrase "State educational institution" as used in N.C.G.S. § 143-153 to include local public schools. Moreover, it should be noted that the statute does not protect all buildings of "State educational institutions"; it only protects their "administrative buildings."
Please call if we can provide additional advice regarding this matter.
Very truly yours,
Edwin M. Speas, Jr.
Chief Deputy Attorney General