The opinion of the Court was delivered by
G-ibson, C. J.Under an act of incorporation, the defendant subscribed the shares which are the subject of the action, in the Stock of “ The Armstrong, Indiana and Camhria Turnpike Road Company.” Of this company, which did not go into operation, the legislature formed two distinct incorporations, of which the plaintiff is one and the owner by apportionment, if any thing were recoverable, of the defendant’s subscription. From this state of the case, it is impossible to avoid a conclusion that the supplementary act is, as regards original stockholders who have not consented to be arranged to either of the new incorporations, in direct collision with the tenth section of the first article of the constitution of the United States, which among other limitations of state power, prohibits the enactment of laws impairing contracts: and notwithstanding our deference to the legislature, we are bound to give effect to the constitutional provision, though at the expense of our common law. The defendant was entitled to his proportion of the tolls received on the whole route, instead of perhaps the least productive half of it; and to enforce his part of the cuntract without giving him the benefit of the entire thing for which he stipulated, would impair its obligation in a most material part. It is not to be doubted that the supplemental act was founded in a presumption of common consent, drawn from an application by a majority of the original stockholders; and in that view it *197would be fair to intend that the legislature did not, in fact, mean to dispose of the subscriptions of those who should not choose to become'parties to .the arrangement. The defendant has not ■thought fit to become a party, and his subscription cannot be demanded.
Huston, J.-This case has been argued as if it turned on the power of the legislature to pass an act., compelling the defendant to pay the money demanded, under the circumstances of this case; and has been disposed of by a majority of this Court, as if it depended on such power. On first reading the case, and the act of 27th March, 1819, it struck me, that a' construction was put on it by the plaintiff, and partly admitted by the defendant, which those who passed the law never thought of. The act throughout, bears evidence of having been hastily drawn; in many respects it is vague, if not obscure. It does not appear whether the company, to divide which the law was enacted, existed .or not; or rather, one would be led to suppose there was such a company. When iu fact only a few shares had been subscribed, and no charter had been obtained, it was pretty certain none would be obtained. Thus, the act which purports to divide a turnpike company, was in fact made to enable two new companies to be formed ; each of which was to make part of the road contemplated by the former company. The fourth section enacts, that the subscriptions already made to the commissioners appointed by the act to which’ this is a supplement, shall and may be lawful; and shall be applied in manner following, &c., and prescribes that those made at Kittanning shall be in part of the western company, and thosé at Indiana in part of the eastern, i. e. the plaintiff’s; and strange as ■it may seem, says nothing of those at Ebensburg, "or any other place. There has been some discussion as to when, in an act of assembly, the word may means shall and e contra, the amount of which is, that when from the subject, the object and the context, that meaning is required, we must so understand it; but where none of these require it, the word should have its common meaning. If the words “and may” had been omitted, it would not have been entirely clear, that the meaning was the same, as if the words “spall be obligatory on the subscriber,” had been used. To me it seerps not allowable to reject the words “and may,” and to change the'words “be lawful,” into “be obligatory.” In short, I consider the law as leaving it oplional with the subscriber. The records will bear this construction better than that given to them in the argumént: and I am persuaded this gives the meaning of the legislature. I add no new words, I reject no word, and I change none. It is allowable to transpose words to effect a meaning, or get clear of an absurdity. I agree that the judgment be for the defendant, because the option was given him.
Judgment affirmed.