specially concurring:
We concur in the conclusion reached in the principal opinion that the commissioners of highways, as such, were without authority to institute or maintain this suit and that the suit must for that reason be dismissed. The road in question is a State aid road, and the State highway department has jurisdiction of it to the exclusion of the commissioners of highways. The parties complainant having no right to institute or maintain this suit, the circuit court and the Appellate Court were without authority to enter a valid order affecting the merits of this controversy. Inasmuch as the suit must be dismissed for want of necessary parties complainant, it is neither necessary nor proper to consider or decide other controverted questions. (McMechan v. Yenter, 301 Ill. 508; Abernathie v. Rich, 229 id. 412.) We do not concur in the statement that the Public Utilities (now Commerce) Commission is the only proper party complainant in an action of this nature.