On Petition for, Rehearing.
Gillett, C. J.10. In their brief on petition for rehearing ■ counsel for relator state that it is the common-law duty of express companies to make personal delivery, except at small stations, and that the Indiana statute is declaratory of the common law as applied to cities of 2,500 or more inhabitants, and it is insisted that the federal enactment was not designed to add to or take from the common-law duties of such carriers.
It is true that the' courts have treated common carriers by express as analogous to common carriers by wagon, and, with the exception heretofore mentioned, have held that it is an implication of their undertaking that they will make personal delivery. The authorities, however, seem to rest on the theory that this responsibility springs from the nature of the undertaking where .otherwise unrestricted. Judge Redfield refers to the duties of such carriers to make personal delivery as the prima facie rule (Redfield, Carriers, §58), *152and the doctrine is so stated by Cowen, J., in Gibson v. Culver (1837), 17 Wend. 305, 31 Am. Dec. 297. Judge Story says: “If there is any special contract between the parties, or any local custom or usage of trade on the subject, that will govern; the former as an express, and the latter as an implied term in the contract.” Story, Bailments (9th ed.), §543. Angell, Carriers (4th ed.), §295, lays down the rule that “when the carriage is by land, and in the absence of any established usage, or any special contract to the contrary, the goods must be carried to the residence of the consignee.” It is stated by a modern text-writer, ’that “in all cases where a special contract or usage is shown to exist Which relieves the carrier from personal delivery, unless the provisions of- the contract are unreasonable, the carrier is not liable if delivery be made in accordance with such special contract or usage.” Moore, Carriers, 194. See, also, American Express Co. v. Hockett (1868), 30 Ind. 250, 95 Am. Dec. 691; President, etc., v. American Express Co. (1864), 8 Allen 512; 2 Parsons, Contracts (9th ed), *186, *187. The ease of Bullard v. American Express Co. (1895), 107 Mich. 695, 65 N. W. 551, 61 Am. St. 358, 33 L. R. A. 66, goes still further. It is there held that it is competent for a carrier by express to establish reasonable delivery limits within a city as against persons having knowledge of the regulation. The court said: “It is clear that a reasonable limit is not in all eases the city limit. Conditions are often varied. If not the city limit, can it be said that a certain number of mile’s from the office, in either direction, would be a reasonable limit? We think, where the company, in apparent good faith, has assumed to fix limits, having regard to the public requirements, that, with regard to persons who have dealt with it, having knowledge of this fact, it is not bound to deliver beyond these limits.”
An analogous principle has been recognized as to common carriers by telegraph, for although, prima facie, their under*153taking is to deliver to the addressee or his authorized agent, yet their right has been recognized to fix reasonable delivery limits ■within a town or city and to impose a reasonable charge for deliveries beyond such limits. Whittemore v. Western Union Tel. Co. (1895), 71 Fed. 651; Western Union Tel. Co. v. Henderson (1889), 89 Ala. 510, 7 South. 418, 18 Am. St. 148; Western Union Tel. Co. v. Trotter (1894), 55 Ill. App. 659; Reynolds v. Western Union Tel. Co. (1899), 81 Mo. App. 223; Jones, Telegraph and Telephone Companies, §296.
Apart from the matters heretofore referred to, we have no doubt of the common-law right of carriers by express reasonably to fix their tolls with reference to the extent of the service to be rendered.
8. In view of the considerations before stated, it certainly cannot be said that the Indiana statute is merely in aid of the common law. On the contrary, if the statute is to be construed as relator’s counsel must necessarily contend, express companies are, as it were, put into a straight-jacket, being denied the right, by contract or by reasonable regulation, to limit their duty in respect to delivery, and being also denied the right to equalize their tolls by the making of fair charges for delivery beyond certain limits.
Whatever may be said of the statute, if thus construed, as applied to intrastate shipments, it certainly cannot be said that, as applied'to interstate shipments, it is not a regulation of commerce, much less that it could not come in conflict with the power of regulation which has been imposed in the interstate commerce commission.
It might be that the very practices complained of would commend themselves to the commission as just and reasonable, and that, if it were found that the companies were easting upon their other traffic the expense of long and burdensome free deliveries, an order would be made forbidding *154the same and substituting a reasonable regulation or practice designed to give greater equality, in view of all the circumstances, among the patrons of such companies. This very consideration must, in view of the railway rate act, operate to suspend the state statute, if construed as appellant contends that it should be, as to interstate shipments by express, and, besides, as we pointed out in the principal opinion, under the authority of the Supreme Court of the United States, any state enactment which imposes a local burden of transportation, which in its operation would require the carrier to adjust his interstate rate with reference thereto, amounts to an .attempted regulation of interstate commerce, and is therefore void as to such transactions.
11. In their brief on petition for rehearing counsel for relator say: ‘ ‘ The opinion handed down in this case is based wholly on the construction by this court of a federal statute which has not been construed by the federal courts, the final arbiters as to such matters. This court has held as a result^ of such construction of the law of a foreign jurisdiction that the Indiana statute previously sustained -is not effective.” This extract abounds in errors. ' (1) Our holding is not based solely on the construction of a federal statute, since, in the absence of such a statute, the act, as applied to interstate shipments would, upon the construction contended for, amount to an attempted regulation of interstate commerce within the holding of Louisville, etc., R. Co. v. Eubank (1902), 184 U. S. 27, 22 Sup. Ct. 277, 46 L. Ed. 416. (2) The Indiana statute has not been sustained by this court as applied to a ease which is within the principle of this one. (3) The statutes of the United States are not, as to this court, the law of a foreign jurisdiction. On the contrary, we find it provided in the Constitution of the United States that “this Constitution, and the laws of the United States which shall be made in pursuance thereof, * * * shall be the supreme law of the land; and the judges in every state shall be bound thereby, any*155thing in the constitution or laws of any state to the contrary notwithstanding. ’ ’ Art. 6.
There is no ground for a rehearing, and the petition is therefore overruled.