dissenting.
I respectfully dissent from the majority’s opinion and would reinstate the revocation issued by the Nebraska Department of Motor Vehicles. In my opinion, the department has correctly asserted that because the Attorney General was not served with summons, as required by Neb. Rev. Stat. § 84-917(2)(a) (Reissue 1994), the district court lacked jurisdiction over the subject matter of Glass’ petition for review.
In the present case, Glass’ petition for review was filed on March 9, 1993. No summons was served on the Attorney General. On March 10, summons was served by mail on the head of the department. On April 27, the department filed a special appearance, alleging that the district court lacked jurisdiction because the Attorney General had not been served with summons and that Glass had failed to comply with Neb. Rev. Stat. § 25-510.02(1) (Reissue 1989). The district court denied the special appearance “for the reason that it was not timely filed.” The department then filed a motion to dismiss on *509the same grounds alleged in the special appearance, which motion was overruled. The district court then ordered the department to reinstate Glass’ driving privileges effective immediately.
Although the department initially filed a special appearance because the Attorney General was not served and now argues that the district court lacked subject matter jurisdiction, it is not only within the power, but is the duty, of an appellate court to determine whether such appellate court has jurisdiction over the subject matter. See Jones v. State, ante p. 158, 532 N.W.2d 636 (1995). Subject matter jurisdiction cannot be created by waiver, estoppel, consent, or conduct of the parties. See Scherbak v. Kissler, 245 Neb. 10, 510 N.W.2d 318 (1994).
Regardless of whether Glass’ action is an appeal or a petition for judicial review under the Administrative Procedure Act, the requirements for instituting the review are set forth in § 84 — 917(2)(a):
Proceedings for review shall be instituted by filing a petition in the district court of the county where the action is taken within thirty days after the service of the final decision by the agency. . . . Summons shall be served within thirty days of the filing of the petition in the manner provided for service of a summons in a civil action. .
“The filing of the petition and the service of summons are the two actions that are necessary to establish jurisdiction pursuant to the Administrative Procedure Act, Neb. Rev. Stat. §§ 84-901 to 84-920 [(Reissue 1994)].” James v. Harvey, 246 Neb. 329, 332, 518 N.W.2d 150, 152 (1994). Both of those actions must be completed before the district court has authority to hear the petition for judicial review, and if those actions are not timely accomplished, the court is not given authority to conduct judicial review.
I disagree with the majority that the requirement of serving summons within 30 days of the filing of the petition is a matter involving personal jurisdiction, which may be waived or may be conferred upon the court by the conduct of a party. Glass’ failure to properly serve the Attorney General within 30 days of the filing of the petition was fatal to his right to seek judicial review under the Administrative Procedure Act.
*510In my opinion, Norris P.P. Dist. v. State ex rel. Jones, 183 Neb. 489, 161 N.W.2d 869 (1968), controls. In that case, we held that the district court lacked jurisdiction because of the failure to serve summonses within 30 days as required. At that time, § 84-917(2) (Reissue 1966) provided:
“Proceedings for review shall be instituted by filing a petition in the district court of the county where the action is taken within thirty days after the service of the final decision by the agency. All parties of record shall be made parties to the proceedings for review. Summons shall be served as in other actions except that a copy of the petition shall be served upon any such agency together with the summons. The court, in its discretion, may permit other interested persons to intervene.”
Norris P.P. Dist., 183 Neb. at 490, 161 N.W.2d at 870.
In that case, the administrative agency’s order was entered on June 29, 1967. On July 26, Norris Public Power District (Norris) filed its petition on appeal in the district court. A praecipe for service of summons on Consumers Public Power District was filed by Norris on July 28, and summons was issued. Summonses for the remaining 26 public power districts were neither issued nor served within 30 days after the time for appeal commenced.
The primary question before this court in Norris P.P. Dist. was whether the district court obtained jurisdiction of the appeal under § 84-917(2). “The only issue is whether or not the controlling statute required the issuance of such summonses within the 30-day appeal period.” Norris P.P. Dist., 183 Neb. at 492, 161 N.W.2d at 871. We held:
The subsection of the statute by its first sentence states that proceedings for review shall be instituted by filing a petition in the district court after service of the final decision of the agency. The second sentence provides that all parties of record shall be made parties to the proceedings for review. In other words, the clear meaning is that the parties appealing are not only required to file a petition in the district court, but they must file a petition making all parties of record parties to the appeal proceeding. But the statute requires more to lodge *511jurisdiction of the appeal in the district court. It requires that summons issue as in other cases. This simply means that a summons must be served which will be valid under the general rules of law governing the validity of a summons and its service. All these requirements must be met to invoke the jurisdiction of the district court on an appeal from an adverse decision of an administrative agency. The last sentence of the subsection makes it clear that the requirements for invoking the jurisdiction of the district court do not prevent the district court from permitting other interested parties to intervene in the proceedings on appeal. In summary, the statute requires the filing of a petition, with all parties of record made parties, and the service of summons on such parties, all within 30 days from the service of the final decision of the agency, after which the district court gains jurisdiction of the appeal.
The plaintiffs contend that the words, “Proceedings for review shall be instituted by filing a petition in the district court,” mean that the jurisdiction of the district court is complete with the filing of the petition. With this we cannot agree. It is true that in common usage the words “shall be instituted” mean “to commence” or “to begin.” But it has a literal meaning of broader import that is applicable here. Its authoritative meaning is “to inaugurate or originate a design, plan, or purpose.” . . . See Webster’s Third New International Dictionary. We think that the words “shall be instituted by filing a petition” is [sic] used in the sense that it originates a procedure that is further spelled out in the language which follows it in the same paragraph of the statute.
We think, further, that it was the intention of the Legislature that a suit in which all parties of record are parties be commenced within 30 days from date of the service of the final decision of the Department of Water Resources on the aggrieved party in order to secure a review. The filing without the issuance of a summons is not the commencement of an action. § 25-217, R. R. S. *5121943. We necessarily conclude that it was the intention of the legislative act to require within 30 days the filing of a petition with all parties of record made parties to the suit and the issuance of summons subsequently served to confer jurisdiction on the district court.
(Emphasis supplied.) Norris P.P. Dist., 183 Neb. at 492-93, 161 N.W.2d at 871-72.
At the time of Norris P.P. Dist., § 84-917(2) did not contain the requirement that summons be issued within 30 days of the filing of the petition. Now, the Legislature has made it mandatory that summons be issued within 30 days of the filing of the petition.
The department moved to dismiss on the grounds that it had not been properly served with process. After the 30 days elapsed and summons was not issued, the department could properly move to dismiss the case. The district court had no jurisdiction in this case, and I would reinstate the revocation issued by the department.
Grant, J., Retired, joins in this dissent.