George W. Conway & A. v. New Hampshire

Whether the taxpayers in their case may properly seek to enjoin the illegal expenditure of state funds, appears to present an inquiry of new impression in this forum. Their right when the funds belong to municipal corporations is well settled. Blood v. Company, 68 N.H. 340, and cases cited; Clough v. Verrette, 79 N.H. 356. The better reasoning is thought to extend the right to state appropriations and expenditures. While the State cannot be sued without its consent (Western Union Telegraph Co. v. State, 64 N.H. 265, 271 ; Bow v. Plummer, 79 N.H. 23, 24 ), and while a suit against those representing the State is one against the State when a judgment or decree against them would have the same effect as though it were directly against the State (Bow v. Plummer, supra, 24, 25), yet when the alleged or threatened wrong, though colorably the States and in its name, is only that of its officials or agents, equity is deemed to have power to grant relief. When a law is challenged as unconstitutional, the claim is that the law is void and hence that no law has been enacted. It follows that if the legislature has not acted under authority, no action has been taken by the State, and hence when suit is brought to restrain those representing the State from carrying the void legislation into operation and enforcing it, it is not a proceeding to which the State is a party. What is forbidden by the Constitution is outside the field of state activity; restraint of forbidden action is not imposed by the courts upon the State but upon those asserting the right to take the action as though it were the States and as though binding upon it.