[130]*130OPINION OB’ THE COURT BY
LEWIS, J.
By petition for a writ of prohibition petitioner presents the question whether service of summons by filing the same with the Director of Regulatory Agencies of the State on September 16, 1964 subjected petitioner to the jurisdiction of the Circuit Court of the First Circuit in a certain action brought by respondents, who are Amy Chitae Segawa, individually and in a representative capacity and two infants, to recover damages for the death of the husband and father of said respondents as á result of injuries suffered in an elevator accident in Honolulu in September 1962. The accident allegedly was caused by [131]*131negligent installation of the elevator in 1955 by petitioner, named in said suit as a defendant.
The circuit court, Honorable Frank A. McKinley, Fourth Judge presiding, ruled that it had jurisdiction and denied petitioner’s motion to dismiss. This petition followed. After the prohibition case had been argued in this court and while it was under advisement Judge McKinley left the bench. We deem the alternative writ, issued herein upon the filing of the petition, equally applicable to any judge who may preside over the case in the circuit court, and proceed to the question whether a permanent writ should issue.
Petitioner is a California corporation which has not qualified to do business in this State. As defendant below, it moved to dismiss the circuit court action and to quash service of summons, relying inter alia upon R.L.H. 1955, § 174-7.5 (Supp. 1963), added by S.L. 1957, c. 315, which provides in paragraph (i) that “transacting any business in interstate commerce” shall not by reason thereof be considered to be “doing or carrying on business in the [State] for the purposes of this chapter [chapter 174, R.L.H. 1955]”; and upon sections 174-1 and 174-2 of chapter 174 as they read in 1955. In 1957, as we shall have occasion to note, section 174-2 was repealed and section 174-1 was amended.
The significance of petitioner’s reliance on these sections of chapter 174 lies in the provisions of R.L.H. 1955, § 172-150. The authorization for service upon the Director of Regulatory Agencies must be found in this section. As amended by S.L. 1963, c. 193, it read in pertinent part as follows:
Ҥ 172-150. Manner of Service.
*****
“If no officer, director, manager, superintendent or other person in charge of the property, business or [132]*132office of the corporation can be found within the State; and in case the corporation, if a foreign corporation, has neglected to file with the officer specified in section 171-11 * * * the name of a person upon whom legal notice and process from the courts of the State maybe served; and likewise in the event that the person so named is not found within the State, service may be made upon the corporation by filing with the [director of regulatory agencies], or in his absence, with the [deputy director], a copy of the notice, or process, certified to be such under the seal of any court of record * * *. The [director or deputy director] so served shall immediately notify the defendant corporation of such service. The filing shall be deemed service upon the corporation forty-five days after the filing * * *
Section 171-1, referred to in this statute, as amended by S.L. 1957, c. 315, supra,, requires the qualification of a foreign corporation which undertakes to “do or carry on business in the State,” including as one of the requirements for qualification the designation of an agent for service of process. When sections 172-150 and 171-1 are read together, it appears that a foreign corporation which is not within the scope of section 171-1, and is not required to designate an agent for service of process, cannot be served by filing the process with the Director of Regulatory Agencies. Only a foreign corporation within the ambit of section 171-1 can be said to have “neglected to file with the officer specified in section 171-1.” And such neglect, or unavailability of the corporation’s designated agent, is by the terms of section 172-150 a condition pre[133]*133cedent to authority to serve the Director of Regulatory Agencies.
While this interpretation is disputed by the Segawa respondents, plaintiffs in the court below, we deem it the only possible interpretation. We are not at liberty to rewrite section 172-150 by interpolating the words underscored below so as to cause it to say: “* * * and in case the corporation, if a foreign corporation, has neglected to file * * * or is not required to do so .” If the legislature had intended to provide for a means of serving every foreign corporation it would have said so. But to have said that would have rendered the statute too broad; the statute would have been without constitutional guideposts. Cf., Cella, Comm’n Co. v. Bohlinger, 147 Eed. 419 (8th Cir.). Section 172-150 is not of such breadth. It is easily recognized as a common type of statute, which at least until a new trend was instituted by International Shoe Co. v. Washington, 326 U.S. 310, was founded on the express or implied consent of a foreign corporation to be served when it designated an agent for the purpose or was required to and failed to do so. Cf., Wilson v. Seligman, 144 U.S. 41, 45; Old Wayne Life Ass’n v. McDonough, 204 U.S. 8, 21-22; Simon v. Southern Ry., 236 U.S. 115, 130; American Ry. Express Co. v. Royster Gitano Co., 273 U.S. 274, 280; Washington v. Superior Court, 289 U.S. 361. This statute might have served respondents’ purpose without resolution of the factual issues encountered here, had not Act 315, S.L. 1957, narrowed the requirements as to designation of an agent, repealing section 174-2 which in turn caused the reference to section 174-2 to be deleted from section 172-150 as set out in note 1, supra. This is discussed further in connection with the legislative history of chapter 174, infra.
By S.L. 1965, c. 134, the legislature added to the armory of the State a statute providing for service of [134]*134process on persons without the State, individuals as well as corporations, as to causes of action arising from certain enumerated acts. The 1965 statute is a “long-arm” statute which, as stated in the committee reports on the bill (House Stand. Comm. Rep. No. 805; Sen. Stand. Comm. Rep. No. 822), “is in line with the modern trend2 making out-of-state corporations, partnerships or persons who have certain significant contacts within the state, amenable to personal service in a suit filed in the state upon a claim resulting from such contacts.”3 The 1965 statute is not before us. However, we deem it appropriate to note that it is materially different from section 172-150 here involved. Cf., Elkhart Eng’r Corp. v. Dornier Werke, 343 F.2d 861, 864 (5th Cir.); Nelson v. Miller, 11 Ill. 2d 378, 143 N.E.2d 673; Simonson v. International Bank, 14 N.Y.2d 281, 200 N.E.2d 427; Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., 15 N.Y.2d 443, 209 N.E.2d 68.
Turning now to the facts of this case bearing on the applicability of section 174-1 and hence the applicability of section 172-150, we proceed on the basis of the findings of the trial judge presiding upon the hearing of petitioner’s motion. Under our construction of the statutes, it is unnecessary to consider petitioner’s attack upon these findings. We assume, without deciding, that the facts are as found, that is, that petitioner contracted with Belle Haven Realty Co. to install the elevator in question in the Waikiki Biltmore Hotel in Honolulu,4 that the [135]*135contract was made in California, that the elevator was installed in Honolulu sometime during the period between March and December of 1955, that the installation was under the direct control of petitioner, and that several months were required to accomplish the work. It is undisputed that this is the only elevator installation which petitioner has made in this State at any time.
We first consider the relevant statutes as they read at the time of the elevator installation in 1955. At that time, as has been seen, section 172-150 referred to section 174-2 as well as 174-1. Section 174-2 provided that a foreign corporation “which engages in any interstate or foreign commerce in the Territory, and which does not undertake to do or carry on any intrastate business in the Territory” must register designating an agent for service of process and furnishing certain information. Pursuant to section 174-7 the fee for this registration was $1.00. Section 174-1 at that time related specifically to the carrying on of “any intrastate business,” as did sections 174-8 to 14. All of these sections were inapplicable to corporations registered under section 174-2, engaged solely in interstate commerce. Foreign corporations coming under section 174-1 were subject to statutes requiring the furnishing of more information than was required by section 174-2, such as information as to capitalization and assets, the filing of a bond unless there were sufficient assets in the Territory, payment of a filing fee of $50 and an annual license fee of $100, and the filing of an annual exhibit of the affairs of the corporation. These statutes subjected the corporation and its agents to penalties for noncompliance, including denial of the corporation’s right to sue or plead, provided for examination into the corporation’s affairs, and imposed certain requirements for withdrawal from the Territory. In short, the statutory provisions applicable to the doing of intrastate business [136]*136(section 174-1) were more burdensome than those imposed on a corporation confining itself to interstate business (section 174-2). The latter was merely required to register, and if it did not, service could be made under section 172-150.
Prior to the enactment of section 174-2, which was enacted as part of section 8391 of the Revised Laws of Hawaii 1945 by S.L. 1951, c. 294, there had been a somewhat similar system under which corporations engaged in interstate commerce, while required to register, were not required to comply with all of the statutory provisions generally applicable to foreign corporations. Thus in Kalanianaole v. Pacific Mail S.S. Co.,2 U.S.D.C. Haw. 301 (1905) it was held that though defendant, as a corporation engaged solely in the business of foreign or interstate commerce, pursuant to the terms of the statute was not required to pay the annual license fee or procure an annual license, still it was required to register and “the authorities agree that a foreign corporation doing business locally may not take advantage of its neglect of filing such required papers and thereby evading service of process.” Service in that case was made on the defendant’s agent here. Subsequently, by S.L. 1909, c. 43, the section now numbered sec. 172-150 was enacted to permit service on the treasurer of the Territory, predecessor of the Director of Regulatory Agencies of the State, in case of such neglect.
When section 174-2 was repealed by S.L. 1957, c. 315, the legislature specifically authorized the treasurer “to cancel the registration of every foreign corporation that has heretofore registered to do business in the Territory in interstate or foreign commerce pursuant to the provisions of section 174-2.” According to Standing Committee Report No. 334 on S.B. 609 which became Act 315, S.L. 1957 (S. Jour. 1957, pp. 544-45) section 174-2 “was testi[137]*137fled to as being unconstitutional,”5 and it was further stated in the committee report that: “Creditors will not be affected as the corporations can be sued in our courts.” This of course was true as long as the corporation remained in the Territory. Cf., International Harvester Co. v. Kentucky, 234 U.S. 579, 585; Fielding v. Superior Court, 111 Cal. App. 2d 490, 496, 244 P.2d 968, 972. But the 1957 enactment left a hiatus should a corporation carrying on interstate commerce in the Territory thereafter absent itself, leaving no officer or managing agent here. The 1957 Act knocked out the foundation, namely section 174-2, upon which service of process had rested in such cases under section 172-150, and the legislature failed to substitute another until 1965.6 It does not rest Avith us to supply the deficiency. Similarly in California, under a statute providing for service on a withdraAvn corporation by serving a state officer if the corporation had transacted intrastate business in California, it was held that service could not be effected on a corporation engaged solely in interstate business after it ceased to do business in the state. Detsch & Co. v. Calbar, Inc., 228 Cal. App. 2d 556, 566-67, 39 Cal. Rptr. 626, 633. While it has been suggested that this California statute is more stringent than constitutionally required (5 Stan. L. Rev. 503, 510; 31 So. Cal. L. Rev. 339, 355-56), the court perforce has followed it in California, as we must foIloAV our statute.
One could hardly find a clearer statement of legislative intent than the provision for cancellation of registrations on file under section 174-2, containing designations of [138]*138agents for service of process.7 And in enacting at the same time paragraph (i) of section 174-7.5,8 providing that a corporation transacting any business in interstate commerce should not by reason thereof come under any provision of chapter 174, the legislature precluded the possibility that corporations formerly covered by section 174-2 thereafter would come under section 174-1.
What kind of business formerly came under section 174-2? This section related to the kind of business which, even if it constituted doing business in the Territory, was protected from the burdensome requirements of annual $100 license fees,9 deprivation of the right of suit as a penalty for failure to qualify,10 and the like. Cf., Cannell & Chaffin v. Deering, 26 Haw. 74. We are confronted here [139]*139with the sole question whether petitioner’s business in this State was business of that character. Even though we may see no reason why liability to service of process in a suit based on a cause of action arising in the State should turn, for example, on the question of liability to annual license fees, that was the result attaching under the provisions of Act 315, S.L. 1957.
The difficulty encountered by respondents is that the legislature in 1957 accepted the view that it was unconstitutional to require the registration of a corporation whose business in the Territory was exclusively interstate commerce, even though no penalty was attached to a failure to register other than liability to service through filing with a state officer. A number of state courts have narrowly construed statutes providing for substituted service on a state officer, apparently in the belief that the constitutional protection of interstate commerce required such narrow construction, though more recent decisions indicate that it may not have been constitutionally required. Cf., the following case under the Massachusetts statute, Pulson v. American Rolling Mill Co., 170 F.2d 193 (1st Cir.). Compare the following cases under the Arkansas statute, i.e., Aldridge v. Marco Chem. Co., 234 Ark. 1080, 356 S.W.2d 615, 621, overruling Rodgers v. Howard, 215 Ark. 43, 218 S.W.2d 240, 242, which had been followed in Ark-La Feed & Fertilizer Co. v. Marco Chem. Co., 292 F.2d 197, 202. In some instances, a statutory provision for service on a state officer has been applied though the business of the corporation was exclusively interstate commerce, and such service has been upheld where the circumstances were such as to come within the statute. Cf., the following cases under the Pennsylvania statute, i.e., Andreas v. Imperial Airlines, Inc., supra, 211 F. Supp. 311 (E.D. Penn.), and Rufo v. Bastian-Blessing Co., 405 Pa. 12, 173 A.2d 123; and under the [140]*140South Carolina statute, State v. Ford Motor Co., supra, 208 S.C. 379, 38 S.E.2d 242, 247-49. But since the legislature in 1957 accepted the narrow view of the early decisions, we have no choice in the matter.
The decision below construed section 172-150 as providing for service on any foreign corporation that constitutionally could be served, irrespective of the applicability of section 174-1 or 174-2. Under our reading of section 172-150 a different question is presented, namely whether petitioner formerly came under section 174-2, if at all governed by chapter 174, and hence was excluded from the operation of section 172-150 by the amendments above reviewed. We deem applicable the line of cases stemming from York Mfg. Co. v. Colley, 247 U.S. 21, represented by the following, the first tAVO of which relate to the installation of elevators shipped into the State from outside the State, i.e., Metal Door & Trim Co. v. Hunt, 170 Okla. 240, 39 P.2d 72; Haughton Elevator & Mach. Co. v. Detroit Candy Co., 156 Mich. 25, 120 N.W. 18; Proctor & Schwartz v. Superior Court, 99 Cal. App. 2d 376, 221 P.2d 972; Combustion Eng’r, Inc. v. Arizona State Tax Comm’n, 91 Ariz. 253, 371 P.2d 879; Brandtjen & Kluge, Inc. v. Nanson, 9 Wash. 2d 362, 115 P.2d 731; Hess Warming & Ventilating Co. v. Burlington Grain Elevator Co., 280 Mo. 163, 217 S.W. 493.
York states the criteria applicable here. If the installation of machinery bears a “relevant” or “appropriate” relation to the contract made for its sale the transaction does not lose its interstate character by reason of the installation. A court must ask itself whether the “intrinsic value [of the machinery] largely depends upon its being united and made operative as a whole.” The “functions of the machinery,” “its complexity,” and “the necessity of its aggregation and unison with mechanical skill and precision in order that the result of the contract of sale * * * might come into existence” are to be considered [141]*141as bearing on tbe appropriateness of including in the contract a provision for installation by tbe seller. 247 U.S. at 25. On tbe other band these factors will not serve to obscure the intrastate character which the business at least partially takes on where the seller undertakes the performance of such functions as the digging of many miles of ditches, as in General Ry. Signal Co. v. Virginia, 246 U.S. 500.
In answer to a question presented by this court11 respondents filed a memorandum in which they distinguish York Mfg. Co. v. Colley, supra, 247 U.S. 21, and rely upon the principles stated in General Ry. Signal Co. v. Virginia, supra, 246 U.S. 500; Browning v. Waycross, 233 U.S. 16, and Caldwell v. North Carolina, 187 U.S. 622. Relying upon the findings of the court below, respondents emphasize that the agreement provided for complete installation by the seller and not merely for supervision by an expert furnished by the seller. They also assert, though there are no findings on the point, that local labor was hired and materials were locally purchased by the seller. But these are not criteria in themselves. They simply bear on the main question. In short, the incidental nature of the work performed in the State by the seller is the test.
Respondents also cite Beach v. Kerr Turbine Co., 243 Fed. 706 (N.D. Ohio), but that case antedated York Mfg. Co. v. Colley, supra, 247 U.S. 21, as did S. R. Smythe Co. v. Ft. Worth Glass & Sand Co., 105 Tex. 8, 142 S.W. 1157. United States Constr. Co. v. Hamilton Nat’l Bank, 73 Ind. [142]*142App. 149, 126 N.E. 866, cited Browning v. Waycross Co., supra, and General Ry. Signal Co. v. Virginia, supra, but did not consider York. In National Refrigerator Co. v. Southwest Missouri Light Co., 288 Mo. 290, 231 S.W. 930, tbe court distinguished York Mfg. Co. v. Colley, supra, 247 U.S. 21, on factual grounds, but the facts here are insufficient. As to Bryan v. S. F. Bowser & Co., 209 S.W. 189 (Tex. App.), and American Amusement Co. v. East Lake Chutes Co., 174 Ala. 526, 56 So. 961, the remaining cases cited by respondents on this question, we do not find the reasoning of these cases persuasive. The Texas case cited the state court’s decision in York Mfg. Co. v. Colley, supra, 172 S.W. 206, apparently overlooking the overruling of that decision by the United States Supreme Court in the leading case above cited, 247 U.S. 21, and the Alabama case was decided before York Mfg. Co.
As plaintiffs in the circuit court, respondents had the burden of sustaining the court’s jurisdiction over petitioner. Victory Carriers, Inc. v. Hawkins, 44 Haw. 250, 259, 352 P.2d 314, 320; Proctor & Schwartz, Inc. v. Superior Court, supra, 99 Cal. App. 2d 376, 221 P.2d 972, 974.12 On the record before us, respondents have not sustained that burden of proof. The mere fact that the installation took several months cannot be said to be decisive.13 It is manifest that the findings of the court below [143]*143are inadequate. The court helow did not address itself to the factual questions which, on a correct reading of section 172-150, are presented. Due to its interpretation of section 172-150 the court directed its consideration of the facts to the question whether, as a matter of constitutional law, petitioner had had “the minimal contact with the State necessary to sustain the jurisdiction of this court.” No finding has been made that petitioner, in 1955 or at any other time, was within the ambit of section 174-1 as a corporation whose business was partly intrastate. Under the terms of section 172-150 that was requisite in order for service to be made on the Director of Regulatory Agencies.
Respondents made in this court a motion to supplement the record. We took this motion under advisement and now rule that the motion will be treated as an offer of proof as to further evidence that could be adduced in the trial court in support of jurisdiction. The proffered evidence would tend to show that Belle Haven, the builder of the Waikiki Biltmore, arranged with petitioner for the installation of the elevator some time after the hotel was built, having made provision at the time of construction for an additional elevator, for freight; that the elévator equipment was shipped to the Waikiki Biltmore from California pursuant to the contract on August 31, 1955; and that Belle Haven made the contract payments in California through its office there, except for payments for materials and services locally obtained and used in the installation, which payments were made by Belle Haven in Hawaii and credited on the contract price. It further would tend to show that on the date of shipment petitioner billed Belle Haven for “1-Geared Electric Elevator to be installed at Waikiki Biltmore — Contract price on elevator — $19,770.00. Due upon shipment of all elevator equipment, 50% of contract price $9,885.00,” and that [144]*144this sum of $9,885 wms paid in installments. Nothing appears as to how the remainder of the contract price was paid, or as to the amount credited for materials and services paid for by Belle Haven in Hawaii. While incomplete in these and other respects the offer of proof does tend to show that further evidence is available bearing on the application of the criteria of York Mfg. Co. v. Colley, supra, 247 U.S. 21.
The ruling of the court below denying petitioner’s motion to dismiss was interlocutory and subject to reconsideration. It still is subject to reconsideration by the circuit court Unless our writ not only reverses the circuit court but also takes the matter out of the circuit court’s hands and grants petitioner’s motion. A writ in the form prayed for would have that effect, for petitioner has asked for a writ forever restraining the further prosecution of respondents’ action with respect to petitioner. A writ in such form is not appropriate. Cf., Dole v. Gear, 14 Haw. 554, 567.
In the first place, we have made no decision that the action should be dismissed as to petitioner or that the summons should be quashed; petitioner’s motion for dismissal sought both but we make no holding as to either. Under our interpretation of R.L.H. 1955, § 172-150, the issue before us is the narrow one of the validity of the service of summons.14 In the second place, our holding on this point is only that the validity of the service of summons has not been supported. We make no holding that it cannot be supported. In the third place the factual issues, now that we have ideutified them, are for the circuit court to resolve.
Where, as here, a writ of prohibition is sought oh the ground that the lower court has wrongly decided the [145]*145question of jurisdiction over the person of the petitioner, prohibition lies for the purpose of preventing the expense, vexation and annoyance of an unauthorized proceeding, since appeal is a matter of right only at the conclusion of the proceeding, after judgment. Prohibition does not lie for the purpose of cutting off a right to further consideration which respondents would have had if a ruling in their favor had been reversed on appeal. Had the matter come up on appeal the case would have been remanded for reconsideration of petitioner’s motion, including the taking of further evidence. Cf., Tugaeff v. Tugaeff, 42 Haw. 455, 473.
Willson C. Moore, Jr. (Harold W. Niokelsen, and Leo J. Walcom of San Francisco, with him on the briefs, Henshaw, Conroy & Hamilton, and Walcom & Harmon of San Francisco, of counsel), for petitioner.
A. Singleton Cagle (Smith, Wild, Beebe & Cades of counsel) for respondents.
William Yim, Deputy Corporation Counsel, City and County of Honolulu, was present but did not argue.
Under the circumstances petitioner is entitled only to a writ restraining further prosecution of the action against petitioner on the basis of the circuit court’s decision of December 10,1964 and order of December 31,1964, it being our intention that reaffirmation of jurisdiction in the event proper evidence is adduced which calls for that result shall not be restrained, nor shall the writ restrain the taking of such steps as respondents may see fit in an endeavor to effect service by other means, as to the validity of which no opinion has been expressed. In accordance with the understanding of the parties the writ will operate as well in respect to the prosecution of the City and County’s cross-claim.