concurring with comment.
My concurrence should not be read as any indication that I have become persuaded that the Court had any constitutional au*763thority to embark upon legislating in the substantive area of attorney fees, as it did in “enacting” I.R.C.P. Rule 54(e)(1) — which is a drastic modification of I.C. § 12-121, a modification which was necessarily within the power of the legislature. See Averitt v. City of Coeur d’Alene, 100 Idaho 751, 605 P.2d 515 (1980), Bistline, J., specially concurring, and Minich v. Gem State Developers, 99 Idaho 911, 921, 591 P.2d 1078, 1088 (1979) Bistline, J., specially concurring, in both of which cases it was stated:
“It was the prerogative of the legislature, and the legislature alone, to create law whereby attorney’s fees may be awarded by district courts in all civil actions; where that sparsely worded statute has created confusion and proliferation of litigation, the legislature, not the Court, should amend its own statute, giving it such further definition and delimitation as it concludes to be necessary and desirable.”
Writing for the last time on the matter of the Court’s unconstitutional encroachment, and better illustrating my view that the legislature’s § 12-121 should have stood or fallen on its own merit, I point to the poignant language in Judge James M. Cunningham’s memorandum order entered in Chapman v. Haney Seed Co., Inc., 102 Idaho 26, 624 P.2d 408 (1981):
“Before the Court is a Memorandum of Costs and Disbursements filed by the plaintiff and a Motion to Disallow Item Eight (attorney fees in the amount of $3,866.25) of that memorandum.
“The Motion to Disallow Plaintiffs’ attorney fees as an item of cost is granted. Prior to the amendment of Section 12-121, Idaho Code, by Rule 54(e)(1), IRCP, I thought Section 12-121, Idaho Code, probably expressed the intention of the legislature to allow attorney fees to the prevailing party as a means of “making him whole”. However, the inescapable inference of Rule 54(e)(1), IRCP, as it now stands, is inescapable — the legislature intended that attorney fees be allowed the prevailing party only when the opposing party, “pursued or defended frivolously, unreasonably or without foundation”. I corrected my erroneous interpretation of that section upon a receipt of copy of Rule 54(e)(1), IRCP, even though the Supreme Court was evidently willing to put up with my error in all cases filed prior to March 1, 1979. In short, I have followed this new rule promulgated ever since it has been rendered regardless of its effective date. I do not believe that the Haney Seed Company defended this case frivolously, unreasonably or without foundation. Thus I am not in a position to exercise my discretion in the matter of allowance of attorney fees in this action.
“Costs are awarded plaintiff in the total sum of $438.50.”
I am, notwithstanding considerations of Rule 54, and also notwithstanding considerations of “discretion,” in agreement with the language of the Court’s opinion which in effect holds that there is no authority in a trial court to insist upon, oversee, or second-guess settlement negotiations, if any, and certainly no authority to impose sanctions for “bad faith” bargaining. That is not to say, however, that a trial court ought not to make inquiry as to the possibility of a negotiated settlement. This has long been an acceptable procedure, and in my opinion a commendable one. In the long-run, it has become rather well established that attorneys are generally as interested in fair settlements as are district judges.