delivered the opinion of the Court:

The single error presented for consideration is that assigned on exceptions taken to the action of the court in sustaining the demurrer to defendant’s plea, hereinbefore set out.

The action was maintained under the employers’ liability act approved April 22, 1908 (35 Stat. at L. 65, chap. 149, U. S. Comp. Stat. Supp. 1909, p. 1171); and the ground for overruling the demurrer is found in sec. 5 of said act, which reads as follows:

“That any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this act, shall to that extent be void: Provided, that in any action brought against any such common carrier under or by virtue of any of the provisions of this act, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employee or the person entitled thereto on account of the injury or death for which said action was brought.”

The act of 1908, it will be remembered, was enacted to *568remedy the defects which had rendered the act of 1906 to a certain extent invalid. The language of sec. 5 differs in language from sec. 3 of the earlier act, which deals with the same subject.

The difference is the basis of an argument that contracts of the nature and purpose of that set forth in the plea were not intended to be stricken down by sec. 5. Without following the argument, or reviewing the provisions of the former section in connection with sec. 5, we think it sufficient to say that we see no ground for the distinction urged. The contract in this case is, in our opinion, clearly within the prohibition of sec. 5 of the act of 1908.

The argument directed to the constitutionality of sec.' 5, as interpreted above, is, we think, substantially answered in the opinion of Mr. Justice Robb, in the recent case of McNamara v. Washington Terminal Co. 35 App. D. C. 230, though the question involved was the validity of sec. 3 of the former act, which act, though inoperative in a State, has been held to be operative in the District of Columbia and other territory under the exclusive jurisdiction of the United States. Since the submission of this case, the questions here raised have been set at rest by a decision of the Supreme Court of the United States in Chicago, B. & Q. R. Co. v. McGuire, 219 U. S. 549, 55 L. ed. —, 31 Sup. Ct. Rep. 259. In view of that decision, further discussion is unimportant as well as unnecessary.

There was no error in the judgment sustaining the demurrer, and the judgment will be affirmed, with costs. Affirmed.