concurring specially.
I concur with what Justice DONALDSON has written and am equally in concurrence with what Justice BAKES has written.
It is to be further observed that the filing of a cost bond as required by I.C. § 13-202 (now repealed) has only been considered as a jurisdictional requirement by reason of the decisions of this Court. When one keeps in mind that provision of our Idaho Constitution that the courts shall be open to every person, art. 1, § 18, that there have been many new pronouncements in constitutional law, a more enlightened modern decision would be to nullify the ancient statutory requirement that a three hundred dollar cost bond be posted in order to exercise the right of appeal. In the early days of Idaho history, a three hundred dollar cost bond was in many instances a prohibitive amount of money, and therefore the statute was in prima facie violation of the constitutional provision.
Additionally, and I think inherent in the Court’s opinion today, is the proposition that the respondent, by reason of its stipulation, long delay in raising the jurisdictional issue, and acquiescence in an appeal procedure so agreed upon, is estopped from raising the jurisdictional challenge. It is true that in days gone by, the cost bond requirement was held to be jurisdictional, and that the parties could not by any act of theirs confer jurisdiction upon the Court. Those early cases are reflective only of the Court’s earlier conclusion that jurisdiction could not be imposed upon it by the acts of the parties or litigants. However, and in addition to article 1, § 18, it also would be proper to hold today that article 5, § 9, of *845the Idaho Constitution was equally violated by I.C. § 13-202, insofar as it was considered jurisdictional to the extent that an unbondable party could not gain an appellate review.
Finally, for my part, I am of the opinion that what Justice Ailshie wrote for this Court in Foresman v. Bd. of Commissioners, 11 Idaho 11, 80 P. 1131 (1905), is applicable here. That case also had to do with appeals to the district court, taken from orders of the boards of county commissioners. The precise question was whether the requirement of a cost bond was as jurisdictional a requirement under the particular statute, now I.C. § 31-1509, as it was in appealing from district court under the provisions of I.C. § 13-202. In Fores-man, mention was made of an earlier case which stated that “the giving of an undertaking on appeal from an order of the board of commissioners to the district court is not jurisdictional, and that an undertaking in such case can be demanded only after the judge of the district court has made his order requiring such undertaking, and fixing the amount thereof.” Id. at 12, 80 P. at 1131. Whether or not that continued to be the law in Idaho is of no real moment. The philosophy of that statement is sound and should be here applied to the administrative review in district courts provided for by the Administrative Procedure Act, especially when considered in light of the two constitutional provisions above mentioned.